Obama Administration Offers Birth Control Fix For Religious Groups
By: Josh Lederman (Insurance Journal) August 2015
Seeking to quell a politically charged controversy, the Obama administration announced new measures Friday to allow religious nonprofits and some companies to opt out of paying for birth control for female employees while still ensuring those employees have access to contraception.
Even so, the accommodations may not fully satisfy religious groups who oppose any system that makes them complicit in providing coverage they believe is immoral.
Effective immediately, the U.S. will start allowing faith-affiliated charities, colleges and hospitals to notify the government _ rather than their insurers _ that they object to birth control on religious grounds.
A previous accommodation offered by the Obama administration allowed those nonprofits to avoid paying for birth control by sending their insurers a document called Form 700, which transfers responsibility for paying for birth control from the employer to the insurer. But Roman Catholic bishops and other religious plaintiffs argued just submitting that form was like signing a permission slip to engage in evil.
In a related move, the administration announced plans to allow for-profit corporations like Hobby Lobby Inc. to start using Form 700. The Supreme Court ruled in June that the government can’t force companies like Hobby Lobby to pay for birth control, sending the administration scrambling for a way to ensure their employees can still get birth control one way or another at no added cost.
The dual decisions mark the Obama administration’s latest effort to address a long-running conflict that has pitted the White House against churches and other religious groups. The dispute has sparked dozens of legal challenges, fueling an election-year debate about whether religious liberty should trump a woman’s access to health care options.
“Today’s announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by nonprofit organizations and closely held for-profit companies,” said Health and Human Services Secretary Sylvia Burwell.
Yet the latest proposals will likely run up against the same objections, because they still enable employees to receive contraception through their health plans _ one of a range of preventive services required under President Barack Obama’s health care law.
“We will be studying the new rule with our clients, but if today’s announcement is just a different way for the government to hijack the health plans of religious ministries, it is unlikely to end the litigation,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty. The fund has represented both Hobby Lobby and Wheaton College, an evangelical school whose case also made its way to the Supreme Court.
Days after the high court ruled in late June in Hobby Lobby’s favor, the justices delivered another blow to the Obama administration by siding with religious nonprofits like Wheaton who said filling out Form 700 wasn’t an acceptable accommodation and still constituted a violation of their religious freedom.
The new fixes unveiled Friday appear to embrace suggestions included in both of the Supreme Court rulings.
In the Hobby Lobby case, Justice Samuel Alito suggested in the majority opinion that one solution would be to offer the Form 700 option to some for-profit companies. And in the Wheaton case, the court said the college could avoid Form 700 while the case is being appealed by instead sending a simple letter to the government indicating its objections.
Yet that temporary fix for Wheaton exempted the college from covering contraception altogether. Under the new accommodation, sending the letter will prompt the government to instruct a nonprofit’s insurer or third-party administrators to take on the responsibility of paying for the birth control, at no cost to the employer. As with Form 700, the government will reimburse the insurers through credits against fees owed under other parts of the health law.
The administration’s hope is that the new accommodation will be more palatable because it creates more distance between religious nonprofits and the health services they oppose, by inserting the government as a middleman between nonprofits and their insurers. Sen. Barbara Boxer, D-Calif., an advocate for birth control access, said that Obama had “bent over backwards” to accommodate religious groups and called for those organizations to drop their opposition.
But social conservatives scoffed, with the Family Research Council dismissing the new fix as an “insulting accounting gimmick.” Archbishop Joseph Kurtz, president of the U.S. Conference of Catholic Bishops, said the church was disappointed because the administration hadn’t backed off its insistence that employer-provided plans still offer coverage the church deems objectionable.
The Form 700 alternative will require religious nonprofits to send the government a letter that includes the organization’s name, the type of health plan they offer, and the name and contact information for their insurance issuers or third-party administrators, officials said. Groups must also explain which types of birth control they object to and state the objection is based on sincerely held beliefs.
The accommodation aimed at for-profit companies will apply only to “closely held” corporations, such as Hobby Lobby, that are owned by families or a small number of investors. The government is asking for the public’s input about how narrowly to define a “closely held” corporation, meaning the specifics won’t be finalized for many months.
