Katie Pavlich

The Obama administration is offering a bogus compromise on its ObamaCare contraception mandate as it tries to get out from underneath a mountain of lawsuits citing religious freedom.

The so-called compromise announced by Health and Human Services Friday shows that "religious" employers such as hospitals and charities can get out of the mandate while religious businesses such as Hobby Lobby are still stuck with providing for coverage and free birth control for employees.

Exemption for Religious Employers

Group health plans of “religious employers” are exempted from having to provide contraceptive coverage, if they have religious objections to contraception.

Today’s NPRM would simplify the existing definition of a “religious employer” as it relates to contraceptive coverage.

The NPRM would eliminate criteria that a religious employer:

    1. have the inculcation of religious values as its purpose;
    2. primarily employ persons who share its religious tenets; and
    3. primarily serve persons who share its religious tenets.

The simple definition of “religious employer” for purposes of the exemption would follow a section of the Internal Revenue Code, and would primarily include churches, other houses of worship, and their affiliated organizations, as defined by Section 6033(a)(3)(A)(i) or (iii)

This proposed change is intended to clarify that a house of worship would not be excluded from the exemption because, for example, it provides charitable social services to persons of different religious faiths or employs persons of different religious faiths.  The Departments believe that this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.   

Creating Accommodations for Non Profit Religious Organizations

Consistent with the Advance NPRM, the NPRM proposes accommodations for additional non profit religious organizations, while also separately providing enrollees contraceptive coverage with no co-pays.  An eligible organization would be defined as an organization that:

1. opposes providing coverage for some or all of any contraceptive services required to be covered under Section 2713 of the PHS Act, on account of religious objections;

2. is organized and operates as a nonprofit entity;

3. holds itself out as a religious organization; and,

4. self-certifies that it meets these criteria and specifies the contraceptive services for which it objects to providing coverage.

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.

In addition, under the proposed accommodations, plan participants would receive contraceptive coverage through separate individual health insurance policies, without cost sharing or additional premiums.  The issuer would work to ensure a seamless process for plan participants to receive contraceptive coverage.

With respect to insured group health plans, the eligible organization would provide the self-certification to the health insurance issuer, which in turn would automatically provide separate, individual market contraceptive coverage at no cost for plan participants.  Issuers generally would find that providing such contraceptive coverage is cost neutral because they would be they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women’s health and fewer childbirths.

With respect to self-insured group health plans, the eligible organization would notify the third party administrator, which in turn would automatically work with a health insurance issuer to provide separate, individual health insurance policies at no cost for participants.  The costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay.

The pro-life Susan B. Anthony list is blasting move, pointing out that the government is now choosing what does and doesn't count as religious beliefs. Not to mention, the mandate still forces employers ethically opposed to the mandate to provide contraception coverage with zero co-pay.

“Once again, President Obama’s so-called ‘compromise’ is unacceptable – religious and moral freedom is not up for negotiation,” SBA List President Marjorie Dannenfelser said in a statement.  “There must be no religious ‘test’ by the government as to who, and what type of entities, are entitled to a conscience.  We demand respect for non-religious entities such as the Susan B. Anthony List that recognize the taking of human life is the antithesis of health care.  Government policy under our constitution, history and statutory law has recognized the right of citizens to be free from government compulsion of conscience on such fundamental matters. The only acceptable outcome is the complete repeal of the HHS mandate and the restoration of a thriving marketplace where Americans can choose health care coverage consistent with their beliefs.”

Expect this issue to keep moving through the court system and eventually, to reach the Supreme Court. At this point, 44 different lawsuits with 130 plaintiffs have been filed against the mandate.


Katie Pavlich

Katie Pavlich is the News Editor at Townhall.com. Follow her on Twitter @katiepavlich. She is a New York Times Best Selling author. Her new book Assault and Flattery: The Truth About the Left and Their War on Women, will be published on July 8, 2014.

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