Center for Inquiry Concerned With New Accommodations on Birth Control Rule

February 1, 2013

The Department of Health and Human Services (HHS) today issued a notice of proposed rulemaking regarding the birth control rule of the Affordable Care Act in an effort to further accommodate religious groups that object to the policy, which requires health insurance plans to cover preventative care, such as contraception, at no charge. 

The notice addresses two main issues: it alters what HHS considers as an exempt "religious employer," and clarifies how employees of organizations that are exempt from the rule will receive coverage. It also discusses issues how HHS might handle objecting non-religious employers.

HHS Secretary Kathleen Sebelius claims the changes provide "women across the nation with coverage of recommended preventive care at no cost, while respecting religious concerns."

However, while we are still examining the detailed outline of today's proposals, the Center for Inquiry (CFI) is concerned that the changes unreasonably expand the definition of "religious employer," and could make it more complicated for employees to access contraception. We are also disappointed that HHS has once again bent over backwards to please the religious lobby. 

As you might recall, HHS originally announced the birth control rule on August 1, 2011, with only houses of worship being exempt. The rule faced immediate and fierce opposition from religious groups seeking to either eliminate the guideline or else widely expand the exemption clause to include religiously affiliated organizations, such as hospitals, charities, and universities. Still, the rule was confirmed on Jan. 20, 2012.

Then, on February 15, 2012, HHS attempted to accommodate continuing religious objections by announcing that it would allow religiously affiliated organizations not to offer contraceptive coverage directly, and instead require insurers to provide coverage.

CFI rejected this accommodation on the grounds that it was unwise and unwarranted. Several months later, on June 11, 2012, we filed a formal letter with HHS urging the agency to finalize the mandate as is, arguing it was justified on both scientific and constitutional grounds.

Today's announcement signals that, HHS agreed with CFI on certain points, and disagreed on others. For example, CFI has argued -- and HHS had previously accepted -- that non-profit organizations should only be exempt if they meet the following qualifications:

  • exist mainly to promote religious values;
  • employ persons who share its religious values;
  • and serve a specifically religious population.

(Note: for-profit companies, such as Hobby Lobby, remain ineligible).

In comparison, we argued that religiously affiliated hospitals, charities, and universities should not be exempt because they: 

  • exist mainly to provide secular services;
  • hire persons of all backgrounds;
  • serve the general public;
  • almost always receive some form of funding from the government.

HHS has rejected these definitions and now posits that non-profit groups should be able to qualify for exemption so long as they meet the following qualifications:

  • oppose providing coverage of contraceptive services on account of religious objections;
  • organized and operate as a non-profit entity;
  • and holds itself out as a religious organization. 

As you can see, this is radically different than the previous standard. HHS claims, and some news outlets are reporting, that this will not provide any broader an exemption than was previously outlined, and that it was simply designed to protect, for instance, churches which operate soup kitchens for the general public. 

Yet CFI is concerned that this is too broad and open a definition of "religious employer." Consider just a few questions: How will HHS determine what does and does not count as a "religious objection"? What does it mean for an outfit to "hold itself out as a religious organization"? For example, will a humanitarian organization with a devoutly religious board of directors that claims it directs the organization based on Biblical principles qualify for exemption? Or are there other qualities included in "holds itself out as a religious organization"? By what standards will HHS determine all of these questions?

We are also concerned by the possibility that non-profit employers which are not "religious" could still receive exemption. According to Howard Friedman of Religion Clause, today's announcement also "fleshes out accommodations for non-profit religious organizations that do not meet the definition of 'religious employer,' but oppose providing coverage for some or all contraceptive services."

They may self-certify their objection to their health insurance issuer or third-party administrator. The health insurer will issue the organization's employees (or students if the religious organization is a college or university) an individual market contraceptive coverage policy at no cost. The insurer can afford to do this because the policies cover the same set of individuals they are already insuring, and they will experience lower costs from improvements in women’s health and fewer childbirths. 

All of that being said, it seems that HHS did take to heart CFI's recommendation that, despite the unnecessary accommodation, all exempt groups should at least be responsible for notifying insurance companies that they will have to set up coverage for employees: 

With respect to insured plans, including student health plans, these religious organizations would provide notice to their insurer.  The insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies.

With respect to self-insured plans, as well as student health plans, these religious organizations would provide notice to their third party administrator.  In turn, the third party administrator would work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies.

Insurers and third party administrators would work to ensure a seamless enrollment process. The proposed rules lay out how the costs of both the insurer and the third party administrator would be covered, without any charge to either the religious organization or the enrollees.

Broadly speaking, we are glad the administration appears to be holding steady on its commitment to provide women with free access to safe, preventative health care, and full control over their reproductive systems. But there was no need to change and make more complex what was already a sound policy. The new definition of "religious employer," along with the other exemption guidelines announced today, could feasibly allow for more exemptions, which would needlessly complicate the process by which women arrange for and receive free contraceptive coverage. 

It is also troubling that HHS has given so much influence to the religious lobby on a major health and public policy decision. This drawn out debate over something as basic as birth control is a perfect example of the harmful influence of religious belief on public policy.

Moreover, while today's proposals should satisfy critics of the rule, it is unlikely they will. The U.S. Conference of Catholic Bishops, one of the most prominent opponents of this rule, has not yet issued a statement, but it's hard to believe they will welcome the news with open arms. And both the Family Research Council and The Becket Fund for Religious Liberty, the Christian advocacy group leading legal challenges to the rule, have already condemned the proposals. 

Fortunately, HHS will accept public comments on today's proposals until April 8, 2013. CFI will spend the next several weeks analyzing what has been suggested and formulate a detailed response. We let you know when it is ready.

Until then, we welcome input below or at opp [at] centerforinquiry [dot] net.  

Update: you might be interested in reading statetements by our friends at Americans United for Separation of Church and StateCatholics for Choice, and the American Civil Liberties Union.

Comments:

#1 slowe on Friday February 01, 2013 at 4:46pm

Thank you for this analysis and comparison of the fine points. I too am unhappy at how the administration has caved in to the religion lobby.

#2 Brian F. Wood (Guest) on Saturday February 02, 2013 at 1:16pm

You take a penny of government money, you obey 100% of its laws.  Simple.

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