It could also breathe new life into lawsuits filed against the Affordable Care Act's contraceptive requirement, some of which were put on hold until the Obama administration clarified its policy on the issue.
Under this proposal, objecting nonprofits will be allowed to offer employees a plan that does not cover contraceptives. Their health insurer will then automatically enroll employees in a separate individual policy, which only covers contraceptives, at no cost. This policy would stand apart from the employer's larger benefit package.
The faith-based employer would not "have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds."
The Affordable Care Act initially required all employers to cover contraceptives as part of a larger package of preventive health benefits for women. Some religious groups opposed the requirement, which they argued would force them to go against their faith-based beliefs. Houses of worship would be exempt.
Last February, the Obama administration announced an accommodation to faith-based nonprofits: A third-party insurance company would cover the cost of contraceptive coverage.
Religious leaders derided the policy as an “accounting gimmick,” arguing that the premiums they pay to a health insurer could ultimately end up paying for the contraceptives they opposed.
The compromise also did not address large companies that self-insure, footing the entire bill for their employees’ health care rather than paying premiums to an health insurance plan. The Obama administration outlined a number of policy suggestions in March that could address those concerns. It included proposals such as contracting with a national insurance plan to provide coverage or tapping into other pots of federal dollars.
Under the policy proposed Friday, self-insured plans opting out of contraceptive coverage would notify the company that administers their health benefits. That third-party administrator would then be responsible for arranging "separate individual health insurance policies for contraceptive coverage from an issuer providing such polices."
Insurers who create these plans for self-insured companies will receive an offset from the federal government: Lower fees to sell plans on the new health exchanges run by the Obama administration.
Private employers and faith-based nonprofits have filed more than 40 lawsuits against the contraceptive mandate. The U.S. Court of Appeals for the District of Columbia Circuit ruled in January that it would hold a legal challenge from two colleges, Belmont Abbey in Belmont, N.C. and Wheaton College in Wheaton, Ill., "in abeyance" as the Obama administration worked to issue these new rules.
Reaction from institutional Catholicism seemed cautious. Cardinal Timothy Dolan, leader of the U.S. Conference of Catholic Bishops – essentially the spokesman for the U.S. church – used the term “welcome” to describe how bishops and their lawyers would review the new regulations.
“Today, the Administration issued proposed regulations regarding the HHS mandate. We welcome the opportunity to study the proposed regulations closely. We look forward to issuing a more detailed statement later,” Dolan said in a midday statement Friday.
Reactions also reflected the huge diversity within Catholicism of this issue.
University of Notre Dame, a key barometer of American Catholicism, said in a statement officials wouldn’t comment until they’d studied the proposal more closely. Notre Dame stirred the ire of traditional Catholics when it honored President Obama in 2009 by giving him an honorary degree and hosting him as commencement speaker. Three years later, the school joined dozens of other mostly Catholic non profits in suing the administration over the mandate.
More liberal Catholic figures – who are statistically more in line with the contraception practices of most American Catholics – applauded the White House Friday.
“HHS and the administration have gone out of their way to resolve the concerns of religious institutions that object to covering contraceptives in their insurance programs,” said the Rev. Thomas Reese, former editor of prominent Catholic magazine America and a well-known writer. “They have also found creative ways to provide contraceptives to the employees of religious colleges and hospitals without the involvement of these institutions.”
The Becket Fund, which represents most of the non-profits suing the White House over the mandate, said the new rule “does nothing to protect the religious liberty of millions of Americans.” However the same statement noted the firm “continues to study what effect, if any, the Administration’s proposed rule has on the many lawsuits” involving Becket’s clients, including Catholic news organization EWTN, evangelical Wheaton College and Ave Maria University.
Many women's health groups quickly supported the new policy.
"Today’s draft regulation affirms yet again the Obama administration’s commitment to fulfilling the full promise of its historic contraception policy,” NARAL Pro-Choice America President Ilyse Hogue said. “Thanks to this commitment, most American women will get birth-control coverage without extra expense. Increased access to birth control is a huge win for women and is necessary to prevent unintended pregnancy — a goal on which both pro-choice and anti-choice people ought to agree."