Editor's note: This piece was co-authored by David Christensen.
The Obama administration and the U.S. Department of Health and Human Services (HHS) have announced yet another proposal to “accommodate” religious freedom under the HHS contraception mandate. If nothing else, this appears to be a concession that last year’s much-touted “accommodation” was insufficient.
After losing 10 to 4 in cases involving businesses in which courts ruled against the mandate, the new “proposed regulation” adds more detail to last year’s Advanced Notice of Proposed Rulemaking (ANPRM). This proposal is designed to implement the “preventive care services” mandate under the Affordable Care Act (ACA). It is meant to quiet-down concerns over conscience violations imposed on religious employers who, under the ACA “contraceptive mandate,” are required to provide health coverage that includes contraceptives, abortifacient drugs (drugs with abortion-causing properties), and sterilizations. Instead of allaying concerns; however, the new regulation simply uses accounting gimmicks to impose the same requirements on employers with religious objections to health insurance that covers contraceptives, abortifacients, and sterilizations.
The new policy states, “Under the proposed accommodations, the eligible organizations would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.” However, the issue isn’t just paying for the cost of a service; the insurance partly does that. The issue is whether religious entities which pay for the coverage can be forced to provide such insurance that covers services to which they object. The policy still requires employers with religious objections to pay for insurance only to have the insurer “automatically” provide objectionable coverage to employees through a “separate” but “contemporaneous” policy.
This isn’t about people purchasing contraceptives or objectionable services on their own. The mandate requires these be covered with no co-pay from the employee. Under this scheme, employers still pay for coverage, only after which the insurer notifies the employees that it will provide it with free contraceptives. The employer’s health plan is the gateway to provide this free coverage, whether on paper you call it separate or not.
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