Despite a new proposal from the Obama administration last week, a battle over religious freedom and contraception continues as rallies in more than 100 cities across the country will take place today.
The Obama administration released a proposal last week that specifies which faith-based groups could be exempt from or accommodated within the contraception mandate. The 32-page regulatory proposal unveiled March 16 also suggests that third-party administrators could provide contraception coverage for employees of self-insured faith-based groups at no cost. Churches are exempt from the mandate, while insurers of parachurch organizations will be required to provide contraception to employees.
“They’ve made it very clear that they’re not broadening the exemption,” said Hannah Smith, senior counsel for the Becket Fund. “It’s aptly characterized as the Obama administration continuing to throw ideas out there and see which ones stick to the wall.”
Lawyers from the Becket Fund and the Alliance Defense Fund plan to speak at some of today’s rallies, organized by the Pro-Life Action League and Citizens for a Pro-Life Society.
On February 10, Obama announced a shift in an earlier ruling by having insurance companies provide the birth control coverage through a separate rider at no cost to the employer. Many religious groups suggest that religious organizations would still have to pay insurance companies for coverage that includes services that violate their teaching.
Religious leaders also suggested the February exemption was still too narrow, possibly setting a precedent for the government to be able to compel religious groups to provide something against their conscience. The March proposal suggests that “this religious exemption is intended solely for purposes of the contraceptive coverage requirement” and would not “set a precedent for any other purpose.”
The February announcement also raised questions about how self-insured religious groups would be affected by the ruling. The new proposal suggests that a third-party administrator of the group health plan or another independent entity would assume responsibility for contraception coverage for self-insured organizations.
The government could provide third-party administrators a credit or rebate under a reinsurance program under the health care law to reimburse them for providing contraception. Or, the proposal suggests, “nothing precludes a religious organization from switching from a self-insured plan to an insured plan.”
The proposal sets out to accommodate “religious liberty interests … in the simplest way possible,” though the question of who is exempt and who is accommodated gets complicated.
The administration is considering whether for-profit religious groups with objections should be considered for some kind of accommodation, though the proposal does not address the concern from some that religious owners of secular businesses will be required to provide contraception if this violates their conscience.
“This is still a mess, even though there is movement towards better responding to concerns—but only within the preexisting framework and the preexisting commitment to access to free contraceptives [through] the employer health plan,” said Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance.
Addressing the question of how contraception will be paid for, HHS has suggested that covering contraception would be nullified for insurance companies because the cost of pregnancy would be greater than the cost of contraception.
“Actuaries and experts have found that coverage of contraceptives is at least cost neutral, and may save money, when taking into account all costs and benefits for the issuer,” the proposal states.
The administration also indicated that student health plans at religiously-affiliated colleges and universities that do not self-insure would have to cover contraceptives through an insurance provider. Shapri LoMaglio, who heads government relations for the Council for Christian Colleges & Universities, said it is complicated to sort out accommodations for religiously-affiliated schools.
She said that the administration took a step in the right direction by seeming to extend the possibility of exemption to groups whose insurance comes from an exempt group, such as a denominationally-affiliated insurance company. For instance, if a Baptist school receives its health insurance through the Southern Baptist Convention, the school could be exempt from the mandate. Institutions will still have to jump through some hoops, she says, but administration officials are noting religious groups’ concerns.
“Within a flawed accommodation, it appeared that they’re trying to address some of the issues,” she said. “We still want to encourage them to make accommodated groups as broad as possible and not link exemption to any sort of denominational affiliation or church hierarchical structure.”
As several groups have noted, the final regulation will be implemented August 2013, nine months after the 2012 election.
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