The New York Times by Robert Pear –
June 28, 2013:
Despite strong resistance from religious organizations, the Obama administration said Friday that it was moving ahead with a rule requiring most employers to provide free insurance coverage of contraceptives for women, a decision that has touched off a legal and political battle likely to rage for another year.
The final rule, issued under the new health care law, adopts a simplified version of an approach proposed by the government in February to balance the interests of women with the concerns of the Roman Catholic Church and other employers with religious objections to providing coverage for contraceptives.
After considering more than 400,000 comments, administration officials refused to budge on the basic principle. The rule, they said, is very similar to their proposal. An exemption is included for churches. But many Catholic hospitals, schools, universities and other religious institutions will have to take steps so that coverage is available to employees and their dependents.
The issue figured prominently in last year’s elections as President Obama and other Democrats pressed their advantage with female voters. At the same time, Catholic bishops waged a national campaign arguing that the federal policy infringed on religious freedom and violated the church’s social and moral teachings on birth control and abortion.
Cardinal Timothy M. Dolan of New York, president of the United States Conference of Catholic Bishops, said the group was reviewing the final rule.
Democrats describe the mandate for coverage of birth control as one of the chief benefits of the 2010 health care law, a boon to women and their health.
“The health care law guarantees millions of women access to recommended preventive services at no cost,” said Kathleen Sebelius, the secretary of health and human services. “Today’s announcement reinforces our commitment to respect the concerns of houses of worship and other nonprofit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work.”
Republicans say the requirement shows how intrusive and onerous the law is.
The rule does not satisfy the concerns of certain religious organizations or businesses whose owners have religious objections to contraceptive coverage.
The United States Court of Appeals for the 10th Circuit, in Denver, said Thursday that the owners of Hobby Lobby, a craft store chain that describes itself as “a faith-based company,” could pursue their case against the rule.
Eric C. Rassbach, a deputy general counsel of the Becket Fund for Religious Liberty, which has represented plaintiffs in that case and others challenging the law, said the final rule did nothing to meet the objections of his clients.
“The government tinkered with some mechanisms in the rule, but did not really get at the religious conscience questions,” Mr. Rassbach said. “So there is a fundamental conflict that will have to be resolved in court.”
Under the rule, women are to have access to contraceptives without any premium, deductible, co-payment or other fees.
Some religious employers do not want their employees to have coverage of contraceptives, even if someone else pays for it.
A number of federal judges deferred decisions until the White House issued a final regulation. Publication of the rule clears the way for courts to act.
Under the new health care law, employers with more than 50 employees will generally be required to offer health insurance to employees, or the employers will be subject to financial penalties.
Among the “essential health benefits” that must be provided are preventive services. In particular, the administration says, most health plans must cover sterilization and the full range of contraceptive methods approved by the Food and Drug Administration, including emergency contraceptive pills, like those known as ella and Plan B One-Step.
Under the rule issued Friday, the government said certain “religious employers” — primarily houses of worship — may exclude contraceptive coverage from their health plans for employees and their dependents. In effect, they will be exempt from the federal requirement to provide contraceptive coverage.
The rule also lays out what it describes as an accommodation for other nonprofit religious and church-affiliated organizations, like hospitals, universities and charities, that object to contraceptive coverage but do not qualify for the exemption.
Under the rule, these organizations will not have to contract, arrange or pay for contraceptive coverage to which they object on religious grounds.
Instead, the administration said, such coverage will be “separately provided to women enrolled in their health plans at no cost.”
Under this arrangement, a nonprofit religious employer must notify its insurer that it objects to contraceptive coverage. The insurer must then notify people in the health plan that it will arrange or pay for contraceptive services as long as they remain in the health plan.
Many employers serve as their own insurers and hire outside companies to administer benefits and pay claims. In such cases, the administration said, the “third-party administrator” must inform people in an employer-sponsored health plan that it is “providing or arranging separate no-cost payments for contraceptive services.”
Administration officials said the cost of contraceptive services would, for insurers, be offset by savings that result from the fact that women would be healthier and will have fewer births.
To reimburse third-party administrators for the cost of contraceptive services, the government said it would reduce the fees charged to certain health insurance companies for the privilege of selling insurance in federal marketplaces, or exchanges, being established in more than 30 states. Insurers will then be required to share some of those savings with third-party administrators for the self-insured health plans of religious employers that object to contraceptive coverage.
The reduction in user fees would reflect the cost of contraceptive services, as well as “an allowance for administrative costs and margin,” or profit. The government would require third-party administrators to provide detailed information about the payments they made or arranged.
Federal officials had difficulty explaining how these arrangements would work in practice. They said they were leaving the details to employers, insurers and third-party administrators.
The Labor Department said it had the authority to require third-party administrators to provide, or arrange for an insurance company or other entity to provide, payment for contraceptive services.
The final rule is the administration’s fourth attempt in 20 months to articulate a policy requiring contraceptive coverage.
Senator Patty Murray, Democrat of Washington, said: “Today’s ruling strikes a fair balance between religious liberties and the reproductive rights of all women. Access to contraception shouldn’t be dictated by a woman’s employer.”
But Patrick J. Reilly, president of the Cardinal Newman Society, which promotes Catholic education, said the final rule did not respect the religious freedom of religious employers. “Now the lawsuits can proceed,” he said.