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New contraceptive mandate rules

Seeking to head off a wave of lawsuits by non-profit religious hospitals, colleges, and charities, the Obama administration on Friday issued a new set of proposals that promise those organizations’ female employees or their female students free access to birth control and other reproductive health services while insulating their employers from any role in providing or paying for that access.   The proposed rules, however, do not change existing rules that will require profit-making businesses to assure such access despite religious objections by their owners — a source of ongoing court challenges that seem headed for the Supreme Court in coming months.

The new federal health care law includes the so-called “contraceptives mandate” that is intended to give all female workers or college students of child-bearing age free reproductive services through insurance coverage.   The Administration first exempted from the mandate only churches, synagogues, mosques, and other strictly worship-related institutions whose sole function was serving those who share their religious beliefs.   But a rash of lawsuits by non-exempt hospitals, colleges, and charitable organizations led the government to promise to give many of them an exemption, and that is what the rules disclosed on Friday would do.

The text of the new rules is here, and a fact sheet summarizing them is here.   They were issued by the Department of Health and Human Services and other federal agencies.  They focus on access to insurance, but their ultimate aim is to give women across the country access to a wide array of birth control services without having to pay for them personally.  Among the services that would be available are birth control techniques and morning-after pills.

The new rules are in proposed form, and the government said it expects the final version to be ready for implementation by next August 1.   The public is invited to file comments on the new version, with all such comments due by April 8.  In the meantime, most of the organizations that would get an exemption under the final version already are entitled to a temporary “safe harbor” exemption that is due to last until August 1.

One distinctive feature of the new version, besides expanding the number of organizations eligible for an exemption, is that the rules are written in a way that the government contends will mean that the exempt religious organizations will have to perform only one minor duty:  they will have to issue a paper declaring that they are eligible for the exemption.  Beyond that, according to the new version, those organizations will not have to enter into any contracts for insurance coverage of the services at issue, will not have to arrange any coverage or any such service, will not have to pay for it, and will not have to refer any employee or student for such coverage or service.

Female employees of hospitals and charities and female employees and students of colleges qualifying for the exemption will have their own individual insurance policies guaranteeing no-fee access to all government-approved forms of birth control, pregnancy screening, and other “preventive” reproductive health services.

All of the activity surrounding the free coverage for female employees and students will be performed by an insurance company that is to provide that coverage without a co-pay or any other fee to the women involved.   If the  employer has its own self-insured plan, the new rules provide for a separate insurance company to handle the coverage.   The government said officials believe that the insurance companies will suffer no negative impact on their income despite the free coverage, because women’s reproductive health would improve enough to lower the overall costs of care.   Even so, the new rules also provide a form of financial offset for insurance companies just to be sure.   Under that proposal, the fee that an insurance company will have to pay for participating in the new health insurance “exchanges” under the new law will be reduced.  (These exchanges are to provide a kind of supermarket of health insurance options, with the aim that competition to provide coverage will lower insurance premiums.  If states do not set up exchanges on their own, the federal government will set up one for such a state.)

The contraceptives mandate has been challenged in scores of lawsuits across the country, by religious institutions that feared or already concluded that they could not qualify for the worship institution exemption because of the way they operate.   Some of those lawsuits were filed by non-profit entities like hospitals, colleges, and charities, and some were filed by profit-making companies whose owners object for religious reasons to birth control methods or medications.   The Justice Department has been defending against each of those lawsuits, with mixed results.  The conflicting outcomes are contributing to the likelihood that the mandate’s validity will ultimately be resolved by the Supreme Court.

Under an order issued by the D.C. Circuit Court, HHS officials have a duty to report, beginning next month, on how they are doing in working out a final version that would provide a broader religious exemption, beyond worship-related entities.   But, even if the new rules announced in proposed form Friday manage to head off the lawsuits by the non-profit organizations, they do not address in any way the challenges by profit-making companies owned by religious individuals or families.  The government takes the view that the religious perceptions of an owner of a business that operates like any other business do not give such owners a right to get an exemption from a law that applies to business employers in general.

In explaining on Friday its continuing refusal to exempt profit-making companies from the contraceptives mandate, the government said that they do not qualify for the exemption that religious organizations have, for example, under Title VII of the 1964 Civil Rights Act outlawing race, gender and ethnic discrimination in the workplace.   The government agencies, it said, “believe it would be appropriate to define eligible organizations to include non-profit religious organizatios, but not to include for-profit secular organizations.”

It now appears likely that the controversy will reach the Supreme Court in one or more cases taken there by profit-making business owners who object to the mandate.   None of those cases is likely to reach the Court for action during the current Term, thus putting over the issue until the Term that starts next October.   Advocacy organizations that have been pursuing the court challenges reacted immediately to the new rules announcement, saying that it continues what they consider to be the government assault on the religious freedom of business owners who object to birth control methods, especially those that some of the owners believe involve modes of abortion.


Recommended Citation: Lyle Denniston, New contraceptive mandate rules, SCOTUSblog (Feb. 1, 2013, 2:12 PM),