Compromise offered by HHS on birth control regulations

HHS offers a compromise to schools like Biola that have filed lawsuits against contraception law.


Courtesy | Nate Grigg [Creative Commons]

Elizabeth Sallie, Writer

On August 23, 2012, Biola filed a suit against the government regarding their issue with having to provide contraceptives to employees and students under Obamacare. | Courtesy of Nate Grigg [Creative Commons]

The Department of Health and Human Services has updated a proposed rule that would provide exemptions to some religious organizations from providing contraceptives, including abortifacient pills like the morning-after pill, to its employees through their insurance.

Friday’s updated proposal alters the details regarding distribution of contraceptives to employees and students insured by previously non-exempt organizations, like Biola, while tweaking earlier definitions.

Biola filed a suit against the government on Aug. 23, saying that the original requirement infringes upon the school’s religious liberties. As the rule stood in August, Biola would have been required to provide contraceptives to their employees and students through their insurance policies as part of Obamacare. After many organizations filed lawsuits protesting the mandate, the Department of Health and Human Services has proposed an accommodation. When describing it, Biola’s legal counsel Jerry Mackey put air quotes around the word “accommodation,” as he thinks the proposal still is problematic.

“It’s still a precedent-setting, narrow religious exemption that … needs to be opposed because there’s nothing else like it in federal law,” Mackey said.

The accommodation would require that a non-profit religious organization file with their insurer certifying their status as such, according to a statement on the Center for Consumer Information and Insurance Oversight website. From there, the contraception would be provided by the insurer at no cost to the participant.

“We can exclude it from our coverage, but by participating in our plan, our plan participants still have access to it. So we’re still the gate — we’re still facilitating their access,” Mackey said.

Mackey also voiced concern that the new requirements would end up being offset by additional fees that would affect Biola, though that is inconsistent with the proposed mandate.

It would be better for the insurance companies to provide free contraceptives in the long run, HHS said.

“Issuers would find that providing such contraceptive coverage is cost neutral because they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women’s health and fewer childbirths,” reads the Center’s statement.

Despite the controversy surrounding the contraceptives, the university’s focus remains on the larger concerns of religious liberties. 

“The big issue, in my view, is not about contraception; it’s about the definition of religious organizations,” said Scott Rae, Talbot chair of philosophy of religion and ethics.

Though three of four criteria were eliminated from the definition for a religious employer, employers will still be defined as organizations that primarily include churches and other houses of worship.

“Basically, for a religious organization, you have to meet on a Sunday morning,” Rae said.

Under the new definition, Biola still only qualifies for non-profit religious organization status — essentially a step below religious organizations like churches.

Both Rae and Mackey pointed out that the final decision will rest with the courts as to whether or not the mandate’s definition of religious organizations is really too narrow. Biola’s case has yet to be decided on, though many similar cases have been ruled as too premature, with only one continuing. 

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