The Obama administration is moving forward with regulations meant to enable certain businesses and charities to steer clear of the Affordable Care Act’s so-called birth control mandate, while ensuring free contraception coverage for women under the law.
The action amounts to an administrative workaround in response to a slew of legal challenges from groups citing religious objections to portions of the mandate. In June, the Supreme Court ruled that closely held religious companies cannot be compelled to offer their employees certain forms of birth control.
Under the proposal, the government would step in and cover the law’s contraception requirements in instances where employers announce their religious objections in writing. The organizations would not have to play any direct role in providing for contraceptive coverage to which they object, according to a final interim rule from the Centers for Medicare and Medicaid.
The rule maintains an existing accommodation for certain religious non-profits who wish to opt out of the coverage because it violates their beliefs. In the face of criticism that that accommodation does not go far enough, the new rule offers an alternative by which organizations can provide notice of their objection to covering contraceptive services without getting involved in the process.
In a separate proposal, the administration is asking for comment on whether it should offer the same accomodation to closely held for-profit businesses that object to the mandate.
“Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work,” said Health and Human Services Secretary Sylvia BurwellSylvia Mary Mathews BurwellThe biggest revelations from Fauci's inbox What a Biden administration should look like Bogeymen of the far left deserve a place in any Biden administration MORE. “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 fix is in line with a suggestion put forth by Supreme Court Justice Anthony Kennedy in the high court ruling against the mandate in the case known as Hobby Lobby v. Burwell.
Opponents of the provision blasted the proposal as an accounting gimmick that fails to respect the court’s finding.
“It is simply another clerical layer to an already existing accounting gimmick that does nothing to protect religious freedom because the employer still remains the legal gateway by which these drugs and services will be provided to their employees,” said Arina Grossu, director for the Center for Human Dignity at the conservative Family Research Council.
The Becket Fund for Religious Liberty, which has represented employers in legal challenges to the provision, described the action as evidence that opponents of the provision were winning the fight.
“This is latest step in the administration’s long retreat on the HHS Mandate,” said Lori Windham, senior counsel for the Becket Fund. "It is the eighth time in three years the government has retreated from its original, hard-line stance that only ‘houses of worship’ that hire and serve fellow believers deserve religious freedom.”
The administration, meanwhile, maintains that Congress should act to ensure the Affordable Care Act's requirement of free contraception services for women.
"We believe that Congress can and should act to ensure that any women affected by recent Supreme Court actions get the same coverage options that everyone else is offered," principal deputy White House Press Secretary Eric Schultz said Friday. "Legislative action is the quickest and best way to ensure that women get access to the services they need, and we call on Congress to act quickly.
This story was updated with additional information at 4:06 p.m.