Under the proposed rule issued in August, religious not-for-profits, such as Catholic schools and hospitals, can opt out of covering birth control by notifying HHS of their objections. The same process would be available to closely held companies with religious objectives to providing such coverage.
Once notified of an objection, HHS and the Department of Labor will arrange for a third-party insurer to pay for and administer the coverage so women working for an objecting entity can still receive the coverage guaranteed by the Patient Protection and Affordable Care Act.
The provision in the rule for closely held companies comes in response to a U.S. Supreme Court decision in June, Burwell v. Hobby Lobby, that the government cannot require companies to provide the coverage if they have a religious objection. Justices in that case referred to how HHS planned to deal with objections from religious institutions as one method to handle objections from closely held companies with religious objections, such as Hobby Lobby's owners said they have.
One concern expressed in comments about the combined proposal was how HHS can ensure the workaround is not abused by companies that do not meet the criteria of being closely held with strong religious beliefs.
Others said they are worried that HHS hasn't outlined how it plans to ensure that those companies not exempt from covering contraception products do so.
A team of law professors from schools around the country including Columbia, Cornell, and Emory University suggested in comments filed that HHS create a centralized oversight and enforcement entity to monitor that the new accommodation isn't abused.
“This is particularly important because the source of insurance coverage will in turn allocate enforcement power for the accommodation among various state and federal entities, creating a fractured and uneven administrative landscape,” they wrote.
The Catholic bishops conference noted that religious organizations were exempt from the contraceptive mandate before the rule and argued the proposed policy would again subject them to the coverage obligation.
“The proposed rules would make the current situation worse for closely held for-profit organizations with religious objections to contraceptive coverage,” the group said.
Dozens of court cases have been filed by religious organizations objecting to the birth-control mandate.
Follow Virgil Dickson on Twitter: @MHvdickson
(This article has been updated to correct the attribution on the quotation from the Catholic bishops conference.)
