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Obama administration proposes new workarounds on contraceptive coverage

The Obama administration is proposing a workaround to provide contraceptive coverage to employees of closely held companies that object on religious grounds. It was not immediately clear whether this latest compromise would finally defuse the controversy that has yielded dozens of lawsuits challenging the administration's policies on the coverage.

Under a proposed rule issued Friday, HHS would give those companies the same accommodation extended to religious charities that raise objections.

The change comes in response to the ruling by the U.S. Supreme Court in June, in the Burwell v. Hobby Lobby case, that the government cannot require companies to provide the coverage if they have a religious objection.

The Obama administration is also tweaking its proposal for providing coverage to employees of religious charities that balk at paying for birth control. Previously, the administration said religious charities could notify their insurer that they don't want to pay for such coverage, and the insurer would instead pick up the tab. Now, the Obama administration proposes that they simply notify HHS of their objection in order to shift the obligation to the insurer.

Religious charities had objected to the previous proposal, arguing that it still makes them complicit in providing contraceptive coverage. The Obama administration's approach has been challenged in dozens of court cases, including one brought by Wheaton College, a religious school in Illinois. Last month, the Supreme Court granted a preliminary injunction prohibiting the enforcement of the provision.

“Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work,” HHS Secretary Sylvia Burwell said in a statement. “Today's announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by non-profit organizations and closely held for-profit companies.”

The plan for accommodating not-for-profit groups is an interim final rule and takes effect immediately. Both of the modifications, however, are open to comments from interested parties for 60 days. HHS is specifically seeking guidance on how to identify which businesses qualify as closely held companies under the Hobby Lobby ruling. Publicly traded companies are still required to provide contraceptive coverage.

Under the Patient Protection and Affordable Care Act, insurers are required to cover preventive care, which HHS concluded should include all FDA-approved contraception. The Obama administration has made an exception to the contraception requirement for churches and other houses of worship.

The Becket Fund for Religious Liberty represents Hobby Lobby, as well as Little Sisters of the Poor (an order of Roman Catholic nuns that operates about 30 nursing homes) and other religious charities challenging the contraception coverage requirement. The public-interest law firm did not immediately indicate whether the new proposal would eliminate their objections and end the litigation. But they cheered the most recent effort at accommodation from the Obama administration.

“This is the latest step in the administration's long retreat on the HHS Mandate,” Lori Windham, senior counsel for the Becket Fund for Religious Liberty, said in a statement. “These charities want to continue following their faith. They want to focus on ministry—such as sharing their faith and serving the poor—without worrying about the threat of massive IRS penalties.”

It seems unlikely that the changes would mollify employers that object to the contraceptive-coverage requirement. That's because they would still be complicit in providing access to birth control to their employees. But supporters of birth control coverage praised the Obama administration for continuing to pursue nearly universal access.

“Once again, we're reminded of the great lengths opponents are willing to go to put barriers between women and their birth control,” Cecile Richards, president of the Planned Parenthood Action Fund, said in a statement. “While the Obama administration is working hard to protect women's access to birth control in the face of harmful Supreme Court decisions, today's notice also serves as a stark reminder of what is at stake for women in this country when it comes to affordable basic healthcare.”

Timothy Jost, a professor at Washington and Lee University School of Law and a supporter of the Affordable Care Act, said it's difficult to imagine what else the Obama administration could do to try and accommodate the religious beliefs of employers. “It's hard for me to believe that a court would say that merely having to disclose their religious beliefs to the government is itself an unreasonable burden on free exercise of religion,” Jost said. “Will they stop the litigation? I don't know.”

Follow Paul Demko on Twitter: @MHpdemko

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