Latest ACA birth-control rule may not assuage objectors

The Obama administration is proposing a workaround to provide contraceptive coverage to employees of closely held companies that object on religious grounds. Whether this latest compromise will defuse the controversy that has yielded dozens of lawsuits challenging the administration's policies on the coverage remains to be seen.

A public interest law firm representing several religious objectors to the mandate characterized the new proposal as part of a “long retreat” by the administration on the issue.

Under a proposed rule issued Friday, HHS would give such 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 not-for-profit 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 is proposing that they simply notify HHS of their objection.

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 Christian 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 Mathews Burwell said in a written statement.

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 public comments for 60 days. 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, which represents a variety of religious groups challenging the contraception coverage requirement, did not immediately indicate whether the new proposal would eliminate client objections and end the litigation.

“This is the latest step in the administration's long retreat on the HHS mandate,” Lori Windham, senior counsel for the organization, said in a statement. “These charities want to continue following their faith. They want to focus on ministry ... 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 to put barriers between women and their birth control,” Cecile Richards, president of the Planned Parenthood Action Fund, said in a written statement.

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