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New rules for ACA birth-control mandate

Issuing a new round of rules to carry out two Supreme Court rulings on women’s access to free birth control, the Obama administration cleared the way on Tuesday for some for-profit businesses to receive an exemption if their owners object to contraceptives because of religious beliefs, but it also set the stage for government action to provide access to such services for those companies’ female employees.  The rules also reinforced the same kind of arrangements for non-profit hospitals, colleges, and charities for their staffs and students.

Since the Affordable Care Act was passed five years ago, with a birth-control mandate included, the federal government has been trying repeatedly to work out formulas to accommodate religious beliefs without denying women access to a full range of contraceptives at no cost to them or to their religious employers.  Now, guided by two rulings by the Justices last year, three government agencies are putting into effect the latest rules that were disclosed late last week.   The aim is to satisfy all for-profit and non-profit institutions that have sued the government, in more than a hundred lawsuits, to avoid involvement in the process.

However, the final rules seem sure to encounter some of the same legal complaints that have kept the courts, including the Supreme Court, busy with this controversy.   With four new appeals already awaiting the Court’s return from summer recess, the end of the dispute is not in sight.

In issuing the new regulations, the government agencies said they were responding to the Supreme Court’s summary order last year in Wheaton College v. Burwell  — a case involving a non-profit religious college in Illinois — and the Court’s broad ruling last year in Burwell v. Hobby Lobby Stores –– a case involving a for-profit company operating a chain of arts and crafts stores, based in Oklahoma.

Before the Hobby Lobby case had reached the Court, the government had provided an exemption from the birth-control mandate for religious institutions operating as non-profits — one that many of those institutions contended did not go far enough — but it had denied any exemption to for-profit businesses, even if their owners had religious scruples against some forms of birth control.

The denial of any form of exemption for for-profit businesses fell in the Court’s Hobby Lobby decision.  Shortly after that, in the Wheaton College case, the Court issued a temporary order while the case proceeds in the lower courts, giving that institution an exemption along the lines that it had provided for other non-profits.  In both of those actions, however, the Court also left open the option for the government to make independent arrangements for access to contraceptives for employees or students.

Last August, the federal agencies began developing new regulations, and it put some of those into effect at that time for non-profits, but postponed new rules on exemptions for for-profit companies until it received further input from the public.   Both sets of rules are now in final form and take effect Tuesday with their formal publication in the Federal Register — the daily chronicle of new government regulations.

Because the Supreme Court had limited its Hobby Lobby ruling to “closely held corporations,” implying that larger companies with publicly traded stock probably would not have a uniform view among its stockholders about religion and birth control, it was up to the government agencies to define what that category would include.  That task was undertaken by the Department of Health and Human Services, the Department of Labor, and the Treasury Department.

Here is what the final rules for for-profit businesses provide:

** The exemption is available for a firm if more than fifty percent of the business is owned by up to five individuals.  A single family of owners is counted as one owner, thus allowing for other owners without losing the exemption.

** The agencies will not hold to that formula in a hard-and-fast way, but will extend the exemption to companies with a “substantially similar” ownership structure, thus enlarging the pool of those entitled to the exemption.   The agencies conceded that the flexibility they had adopted went beyond what the Supreme Court had required in the Hobby Lobby decision.

** A company that is eligible for the exemption must take a vote of its “highest governing body,” such as a board of directors, formally declaring the owners’ religious objection to the ACA contraceptive mandate.

** To actually receive an exemption, the company must notify the government of its religious objection, using either a government-prescribed form or an informal letter to HHS.  Once it receives the notification, the government may then work with that company’s health plan — independent of the company — to arrange for the birth control coverage for employees.

The agencies noted that they had decided not to tighten the restrictions on companies in several ways that some members of the public had advocated.  Among other proposals that were not adopted was a requirement that the company management tell its workers about its move to gain an exemption, and that the company had to have only employees who shared its religious views.  Both of those ideas were too limiting, the agencies concluded.

The rules for non-profits were only slightly modified from what the agencies had put into effect last August — the rules that have continued to be at the center of court battles around the country, with new appeals to the Supreme Court already filed or in the offing.   For non-profits, they, too, must notify the government of their objections and, for them, too, the government can then arrange for coverage for their staffs or their students.

The agencies also decided to turn aside alternatives to the approach the rules have now taken, such as having the government provide the contraceptives directly to female employees and students, without involving the company health plans at all, or arranging for doctors or pharmacies to dispense the contraceptives to workers .   The agencies said they did not want to require female employees to have to make new and different arrangements to receive access to contraceptives, when they were already involved in health plans set up by their employers or college administrations.  Some of the suggestions for alternatives, the agencies added, were beyond the government’s powers.

With the new rules now officially operational, for both non-profits and for-profit businesses, lower courts are expected to begin receiving new lawsuits, or to take account of the rules in already existing lawsuits.




Recommended Citation: Lyle Denniston, New rules for ACA birth-control mandate, SCOTUSblog (Jul. 14, 2015, 6:03 AM),