Obama administration offers another 'accommodation' on contraceptive mandate

August 22, 2014

The Obama administration has again altered regulations governing the contraceptive mandate in the Affordable Care Act, in a bid to legal challenges.

The new regulations, issued on August 22, would require non-profit organizations to provide written notification to the Department of Health and Human Services (HHS) if they had moral objections to providing contraceptive coverage in employees’ health-care programs. HHS would then arrange that coverage for the employees, without involving the employers.

HHS Secretary Sylvia Burwell claimed that the new regulation—the 8th effort by the Obama administration to address the objections brought by religious employers—“reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by non-profit organizations and closely held for-profit companies."

The Obama administration has made repeated efforts to ensure that contraceptives are covered in all employees’ health-care programs. But the contraceptive mandate has been challenged in more than 300 lawsuits, and opponents of the policy have grown increasingly confident that the contraceptive mandate will ultimately be struck down by the US Supreme Court. “This is latest step in the administration’s long retreat on the HHS Mandate,” observed Lori Windham of the Becket Fund for Religious Liberty.

Until the release of today’s amended regulation, religious organizations were required to inform their insurance carriers that they were morally opposed to paying for contraceptive coverage; the insurers would then be obliged to provide that coverage at their own expense. Religious organizations had objected to that policy, saying that by providing the written notice they were, in effect, taking the step necessary to arrange for contraceptive coverage, against their principles. The US Supreme Court upheld a challenge on those grounds in the Wheaton College case.

However, the new HHS policy is unlikely to satisfy opponents of the contraceptive mandate. Religious employers are still required to provide written notice of their refusal to cover contraceptives, and that notice would still trigger the coverage. Arina Grossu of the Family Research Council characterized the new plan as adding “another clerical layer to an already existing accounting gimmick.” She added: “This new proposed rule maintains the threat of crippling fines on non-profits who stand up for their freedom of conscience.”

The latest HHS regulation takes effect immediately. However, it is classified as an “interim final rule,” which could be changed yet again in response to criticism and/or legal challenges.

 

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Further information:

• Feds to unveil new birth control mandate (The Hill)
• Administration offers new tweak to birth control rule (Washington Post)
• White House Rolls Out New Birth Control Accommodation For Nonprofits (Huffington Post)
• New HHS Mandate Rule Adds Absurd Clerical Layers to Accounting Gimmick, Fails to Respect Hobby Lobby Ruling (Family Research Council)