The Obama administration, still facing legal challenges to its requirement that employer health plans provide no-cost birth control to female employees, outlined a new policy Friday to ensure that female workers at religiously-affiliated nonprofits can still receive contraception, even if their employers object.
The administration also intends to offer a similar work-around to for-profit businesses after the Supreme Court's bitterly debated 5-4 decision in June that owners of closely held firms could refuse contraception coverage if it conflicts with their religious beliefs.
The new federal guidelines address a set of ongoing legal challenges to the contraceptive requirement raised by dozens of religious nonprofit groups, such as hospitals and charities, that could again put the contraception mandate before the Supreme Court. The religious nonprofits are challenging the administration's already existing opt-out, in which the groups can ask a third party to provide the contraception coverage to their employees. However, the nonprofits say that filling out the form notifying the third party violates their religious beliefs.
The nonprofits can now directly inform the Department of Health and Human Services of their religious objections. HHS and the Labor Department will then coordinate contraception coverage with insurers and third party administrators. The nonprofits still have the option to notify a third party directly.
The new guidelines are a response to the Supreme Court's decision in July to temporarily exempt a nonprofit, Wheaton College in Illinois, from the contraception coverage requirement. A majority of the justices — over the sharp objections of the court's three female justices — said filling out the exemption form violated the institution's religious beliefs.
In light of the Supreme Court's ruling in Burwell v. Hobby Lobby, the administration also proposed similar accommodations for businesses that oppose the mandate. In this summer's decision, the court's five conservative justices found that a 1993 religious freedom law allowed the owners of "closely held" for-profit businesses to refuse contraception coverage. HHS is still trying to clarify which businesses could seek an exemption under the Supreme Court's decision.
“Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work,” HHS Secretary Sylvia Burwell said in a prepared statement. “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 Becket Fund, a law firm that represents 126 non-profit plaintiffs ranging from evangelical Wheaton College to Catholic University of Notre Dame, said Friday afternoon it hadn’t yet seen the full text of the rule and thus couldn’t comment on its specifics.
Several of the country’s biggest faith groups on Friday said the revised rule was still problematic because it didn’t fully exempt organizations – for-profit or non-profit – with religious objections.
"Here we go again,” said Russell Moore, president of the policy arm of the Southern Baptist Convention, the largest U.S. Protestant denomination. “What we see here is another revised attempt to settle issues of religious conscience with accounting maneuvers. This new policy doesn't get at the primary problem.”
The U.S. Conference of Catholic Bishops said it's worried that the administration's proposal could limit which for-profit businesses can receive a religious exemption.
"By proposing to extend the 'accommodation' to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom,” the group's statement read.
Michelle Boorstein contributed to this report.