By Tyler Arnold
Washington D.C., Apr 5, 2023 / 13:00 pm
President Joe Biden’s Department of Health and Human Services (HHS) is working to expand access to contraceptives and abortion-inducing drugs by changing rules that guide a contraceptive mandate in the Affordable Care Act (ACA). The change, which just moved past the public comment period, has received criticism from the U.S. Catholic bishops.
What is the ACA contraceptive mandate?
Under the Affordable Care Act, often dubbed ObamaCare, most employers must include coverage of certain contraceptive services in health care plans offered to employees at no out-of-pocket cost to the employee. This includes some abortifacient drugs, which are abortion-inducing contraceptives used shortly after a woman becomes pregnant.
Many pro-life Americans objected to the mandate, particularly because it forced certain organizations and businesses to provide medical coverage for abortion-inducing drugs.
How have courts addressed the religious freedom concern?
The rules faced legal challenges in court, notably in the famous case of Burwell v. Hobby Lobby Stores, Inc., where the Supreme Court decided 5-4 that it was “unlawful” for HHS to impose the mandate on those who have a religious objection and ordered the agency to provide a “religious accommodation.” According to the court, HHS could provide an accommodation that ensures religious freedom and “does not threaten the viability of ACA’s comprehensive scheme.”
Under President Barack Obama’s administration, the federal government established a now-defunct accommodation, which forced organizations that held religious objections to self-certify that objection to their insurers. However, this simply shifted the liability from the organization to the insurer, which was still required to provide the same contraceptives at no out-of-pocket cost.
The accommodation faced legal challenges for not adequately offering relief to those who objected to the contraceptives on religious grounds. Although lower courts ruled in favor of the accommodation, the Supreme Court in Zubik v. Burwell ordered the courts to revisit the case to determine whether the objective to provide the employees with free contraceptive services could be reached in a way that did not make the religious objectors complicit in providing the contraceptives.
What are the current rules?
When President Donald Trump took office, his administration revised the rules again. This time, he established broad exemptions for employers who objected on religious or moral grounds and did not establish any accommodation process. Under the Trump administration rules, which are still in place, employees who work for those exempt organizations do not have contraceptive coverage in their health care plans.
The Trump-era rule relieved “burdens that some entities and individuals experience from being forced to choose between, on the one hand, complying with their moral beliefs and facing penalties from failing to comply with the contraceptive coverage requirement, and on the other hand, providing (or, for individuals, obtaining) contraceptive coverage in violation of their sincerely held moral beliefs,” according to Trump administration explanation published in the Federal Register.
So what would change?
The proposed rule change would eliminate the secular moral objection, but it would keep the religious exemption in place with a new accommodation process.
Under the proposed revision, secular opponents who have philosophical qualms with abortifacient drugs, even if they are explicitly pro-life organizations, could be forced to provide health care coverage for these services.
Although the rule would maintain the religious exemption, it would provide a new accommodation process by which employees of these exempt organizations could obtain the same contraceptive services for free, without forcing the employees to provide them.
The workaround would establish “individual contraception arrangements,” which would allow individuals who work for exempted organizations to receive contraceptives from a provider free of charge. The provider “would be able to seek reimbursement from an issuer with whom it has a signed agreement for the cost of providing contraceptive services to women covered under these plans,” according to an explanation published by the Biden administration in the Federal Register.
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Because the employer would not be paying for the services, the government would subsidize the insurance provider by adjusting its federally-facilitated Exchange or State Exchange fee, which means that taxpayers would indirectly cover the costs.
Employers would not be required to take any action to grant their employees access to this service, nor would they need to adjust the health insurance plans they provide.
“This individual contraceptive arrangement would be available to the participant, beneficiary, or enrollee without the plan sponsor or issuer having to take any action that would facilitate the coverage to which it objects,” according to the administration. “Simply put, the action is undertaken by the individual, for the individual.”
What do the U.S. bishops say?
The United States Conference of Catholic Bishops opposes both rule changes: ending the moral objector exemption and establishing a new accommodation process.
“This mandate requires most employers’ health plans to cover contraception, sterilization, and some abortion-causing drugs for free for employees and their dependents,” the USCCB wrote concerning ending the moral exemption. “Pro-life groups are vulnerable to being forced to pay for these as well.”
The bishops have a significant concern with the new accommodation process as well.
“While some improvements that we’ve won in the past several years are likely to be kept in this new version (especially for religious organizations), it is still based on a harmful pro-contraception and anti-life philosophy that is bad for society,” the statement read. “Also, it leaves the door open to a so-called ‘accommodation’ process like the one the Little Sisters of the Poor fought against for so many years.”
What happens next?
HHS drafted a proposed rule, but nothing is final yet. The agency opened the proposal up for a public comment period of 60 days, which ended on Monday. The agency must now review those comments and consider the next steps.
The agency can reopen the proposed rule for further comments if it is not satisfied with the responses it has received and is allowed to consider comments submitted late but is under no legal obligation to do either. The agency is also not required to take the advice or the considerations provided through public comments if they do not want to.
If HHS does not reopen the proposal to further public comments, the agency will work with Biden and potentially with other agencies to submit a final rule change.
Ultimately, HHS has a lot of discretion about what it will do next. CNA reached out to HHS to ask how many public comments the agency received and what the next steps will be but did not receive answers to those questions by the time of publication.
