January 22, 2012

THE OBAMA administration infuriated women’s groups and reproductive-health advocates last month when it rejected a request backed by its own Food and Drug Administration to let girls younger than 17 obtain the Plan B emergency contraceptive without a prescription. This was a difficult call involving issues of policy judgment as well as science, but we disagreed with the decision by Health and Human Services Secretary Kathleen Sebelius, backed by President Obama.

Last week, in a similarly controversial call about the scope of required insurance coverage for contraceptives, the administration ruled in a way that pleased the very groups unhappy with the Plan B ruling, by requiring that employees of religious groups that oppose contraception be offered the coverage free of charge. This time, too, we think the administration came down on the wrong side of a tough call.

In writing the new health-care law, Congress required that private insurers offer preventive services free of charge, without deductibles or co-payments, but it left to the Department of Health and Human Services the question of what should be included. Ms. Sebelius, following recommendations from the Institute of Medicine, correctly concluded that contraception was prevention.

But recognizing the existence of religious objections, primarily from the Catholic Church, HHS included an exemption for directly religious institutions such as churches, whose employees would tend to also be adherents of the faith. The question that the administration decided last week was whether that exemption should be expanded to include institutions affiliated with the church, such as Catholic educational institutions, hospitals or charities, whose employees include many non-Catholics.

The best approach would have been for HHS to stick to its original conclusion that contraception coverage should generally be required but to expand the scope of its proposed exemption for religiously affiliated employers who claim covering contraception would violate their religious views. The administration’s feint at a compromise — giving such employers another year to figure out how to comply with the requirement — is unproductive can-kicking that fails to address the fundamental problem of requiring religiously affiliated entities to spend their own money in a way that contradicts the tenets of their faith.

Those who argued against the broader exception pointed to the fact that this move would deny free contraceptive coverage to hundreds of thousands of women who had no religious objection themselves but simply happened to be employed by a hospital, say, with a religious affiliation. They note that 28 states already require employers to include contraceptive coverage; of those, 10 have no exemption for religious institutions.

That is all true, yet the significance of the new health-care law is that the federal government will for the first time require all employers to provide insurance coverage for their workers — in other words, to spend their own money to help underwrite this coverage — or, in many cases, to pay a penalty. In this circumstance, requiring a religiously affiliated employer to spend its own money in a way that violates its religious principles does not make an adequate accommodation for those deeply held views. Having recognized the principle of a religious exemption, the administration should have expanded it.