Seeking a win-win solution for HHS regulations

First, a bit of background. In August of this year, the Department of Health and Human Services announced that all new health plans would have to cover contraceptive services, sterilization procedures, and patient education and counseling for women of childbearing years without co-pays or deductibles for patients. HHS proposed that certain religious employers would be exempt from the requirement to provide contraceptive services, and it defined the term “religious employer” quite narrowly. An organization is a “religious employer” under the rule only if it primarily employs and serves people who share its faith, has as its purpose inculcating religious values, and qualifies as a church body under certain narrow IRS requirements. HHS requested comments on this definition, which were due September 30, 2011.

The issuance of this interim final rule triggered a conflict between some religious communities and health care advocates. Briefly stated, here are the competing interests.

On one side are the rights of religious bodies to practice their faiths as they see fit, rather than as the government sees fit. Many religious organizations serve people of all faiths and none, and thus would not qualify for the HHS exemption. Some of these same organizations preach against sterilization and the use of most contraceptives. The HHS rule would force them to contradict those religious teachings by providing health care coverage for those services.

On the other side of the ledger is the need for wide access to services that reduce government costs, and, many believe, promote public health and stronger families. The National Campaign to Prevent Teen and Unplanned Pregnancy reports that one-half of all pregnancies in the United States are unplanned, and that unplanned pregnancies cost taxpayers about $11 billion per year. By reducing unintended pregnancies, access to affordable contraception lessens those costs. It also decreases the number of abortions and helps families to plan for the future.

The government should seek to resolve this conflict by accommodating all religious entities that object to providing coverage for contraceptives and sterilization, while also ensuring that employees of those organizations have the ability to access such coverage.

For some ideas about how we might accomplish these aims, we can look to certain state laws. In terms of its definition of a “religious employer,” the state of Hawaii’s contraceptive coverage law has some of the same defects as the interim federal rule. But it appears to have taken some noteworthy steps to ensure that employees of objecting religious organizations may readily gain access to affordable coverage of contraceptives. Under Hawaii law, religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact and describing alternate ways for enrollees to access coverage for contraceptive services. Hawaii law also requires health insurers to allow enrollees in a health plan of an objecting religious employer to purchase coverage of contraceptive services directly and to do so at a cost that does not exceed “the enrollee’s pro rata share of the price the group purchaser would have paid for such coverage had the group plan not invoked a religious exemption.” A New York law has similar provisions.

Again, these state laws are far from perfect. Further, we need more information about how they have worked in practice for all concerned.

Nevertheless, the laws represent efforts to seek solutions that protect the rights of conscience and secure wide access to important health care services. The objections of all religious entities to providing coverage for contraceptives and sterilizations should be honored. At the same time, employees of objecting religious organizations should have prompt access to such coverage on the same terms as employees of other organizations.

Let’s work toward a win-win solution here.

Melissa Rogers  | Oct 7, 2011 9:25 AM