The PJ Tatler

HHS Issues Final Rule on Contraceptive Mandate with 'Simpler' Definition of Religious Employer

Health and Human Services issued its final ruling on religious and conscience exemptions for mandatory contraceptive coverage today, outlining a proposed “simpler” definition of what constitutes a religious employer.

Group health plans of “religious employers” are exempted from having to provide contraceptive coverage, but the definition of an employer that could be exempted is one that has “the inculcation of religious values as its purpose,” one that will “primarily employ persons who share its religious tenets,” and one that will “primarily serve persons who share its religious tenets.”

The Centers for Medicare & Medicaid Services says this mirrors Section 6033(a)(3)(A)(i) of the Internal Revenue Service code defining religious organizations for tax-exemption purposes.

“This change is intended to clarify that a house of worship is not excluded from the exemption because it provides charitable social services to, or employs, persons of different religious faiths. It does not expand the universe of group health plans that qualify for the exemption beyond that which was originally intended,” CMS said.

The final rules also offer leeway for nonexempt nonprofits, such as hospitals and schools, that qualify as religious organizations and object to contraceptive coverage on religious grounds.

This is defined as an organization that “on account of religious objections, opposes providing coverage for some or all of any contraceptive services otherwise required to be covered,” that “is organized and operates as a nonprofit entity,” one that “holds itself out as a religious organization,” and that “self-certifies that it meets these criteria in accordance with the provisions of the final regulations.”

“Under an accommodation, an eligible organization does not have to contract, arrange, pay or refer for contraceptive coverage. At the same time, separate payments for contraceptive services are available for women in the health plan of the organization, at no cost to the women or to the organization,” the ruling summary states.

“With respect to insured health plans, including student health plans, to be eligible for the accommodation, an eligible organization must provide a copy of its self-certification to its health insurance issuer. These plans must then provide separate payments for contraceptive services for the women in the health plan of the organization, at no cost to the women or to the organization. As explained in the final rules, issuers will find that providing such payments is cost-neutral.”

For self-insured health plans, “to be eligible for the accommodation,” a third-party administrator must “provide or arrange separate payments for contraceptive services for the women in the health plan of the organization, at no cost to the women or to the organization.”

“The costs of such payments can be offset by adjustments in Federally-facilitated Exchange user fees paid by a health insurance issuer with which the third party administration has an arrangement.”

“The health care law guarantees millions of women access to recommended preventive services at no cost,” said Health and Human Services Secretary Kathleen Sebelius. “Today’s announcement reinforces our commitment to respect the concerns of houses of worship and other non-profit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work.”

“Today’s ruling strikes a fair balance between religious liberties and the reproductive rights of all women,” Sen. Patty Murray (D-Wash.) said. “Access to contraception shouldn’t be dictated by a woman’s employer, so I  applaud the administration’s work to thoughtfully implement this policy to make sure women across the country can access birth control without having to pay a co-pay.”

Courts ruled this week that two corporations, evangelical-owned Hobby Lobby and Baptist-owned Beckwith Electric Company, have First Amendment protections that protect them from the government mandating contraceptive coverage.

Both of the for-profits would not qualify for exemptions on the rules issued today.

Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty representing Hobby Lobby, noted that “after two years of debate, four failed proposed accommodations, and over 60 lawsuits and 200 plaintiffs challenging the regulation, the Administration has announced its final rule on the HHS mandate.”

“We look forward to closely studying the impact it will have on the existing lawsuits and the religious freedom of millions of Americans, and will provide a detailed statement shortly,” Rassbach said.

UPDATE: Becket Fund has studied the ruling and declared it “the same old, same old.”

“As we said when the proposed rule was issued, this doesn’t solve the religious conscience problem because it still makes our non-profit clients the gatekeepers to abortion and provides no protection to religious businesses,” Rassbach said. “The easy way to resolve this would have been to exempt sincere religious employers completely, as the Constitution requires. Instead this issue will have to be decided in court.”

“When it comes to religious liberty, the Department of Health and Human Services is acting like a kid who doesn’t want to eat his lima beans. Our Constitution and laws require them to protect religious exercise, but they really don’t want to, so they are trying every trick in the book to avoid doing so. But we will keep suing until the courts make HHS comply with its obligations,” he added.

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