The Obama Administration has proposed new regulations that purport to accommodate some of the concerns voiced by religious organizations in response to its original attempt to mandate that virtually all health insurance plans offer contraceptive coverage free of charge.
You can read or download the regulations (all eighty pages of them!) here (scroll down a bit).
Like everyone else, I can only promise to study these new regulations closely before I offer any sort of comprehensive commentary.
For the moment, with the Becket Fund, I’ll note that the regulations certainly don’t address the conscientious concerns of religiously motivated for-profit employers. The proposed regulations also maintain the distinction between religious organizations (largely houses of worship) that are exempt from the HHS mandate and those that are not (e.g., religiously affiliated hospitals and universities). Eligibility requirements for membership in both groups seem to be a bit looser.
The big change seems to be in the way contraceptive coverage is going to be provided to those enrolled in the health insurance plans offered by the non-exempt religious groups.
Under the proposed accommodations, the eligible organizations would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.
In addition, under the proposed accommodations, plan participants would receive contraceptive coverage through separate individual health insurance policies, without cost sharing or additional premiums. The issuer would work to ensure a seamless process for plan participants to receive contraceptive coverage.
With respect to insured group health plans, the eligible organization would provide the self-certification to the health insurance issuer, which in turn would automatically provide separate, individual market contraceptive coverage at no cost for plan participants. Issuers generally would find that providing such contraceptive coverage is cost neutral because they would be they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women’s health and fewer childbirths.
With respect to self-insured group health plans, the eligible organization would notify the third party administrator, which in turn would automatically work with a health insurance issuer to provide separate, individual health insurance policies at no cost for participants. The costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay.
The claim that will receive (and deserves to receive) the most attention is that this arrangement leaves no costs for contraceptive coverage that can in any way be passed on to the religious organization (see pp. 26, 28 of the proposed regulations).
So, gentle readers, what do you think?
February 1st, 2013 | 3:23 pm
I think I wonder what readers think of the idea of Jehovah’s Witness employers refusing to cover blood transfusions, and of any employer telling their employees they are not permitted to spend their salary on porn.
February 1st, 2013 | 3:36 pm
Boo –
There is a difference between me spending my employees spending their salary on porn and me paying directly for their porn. Same thing here. There is a difference between my employees paying for their contraception with their own money and me paying directly for it.
Also, I am of the opinion that Jehovah’s witnesses should not have to pay for their employees blood transfusions if they find it immoral. If I were employed by a Jehovah’s witness and they weren’t willing to pay for something I think they should, I would just find other employment. Nobody is forcing and nobody should force people to work for the Catholic Church. If people want their employer to pay for their contraception they can find a new employer.
Why is this so hard for people to understand?
February 1st, 2013 | 3:55 pm
It sounds like the situation is this:
The employee of a religious institution (Notre Dame, for example) will have no-copay coverage of contraceptives if and only if the religious institution provides health insurance.
The only way the religious institution can prevent the employee’s receiving no-copay coverage of contraceptives is not to provide health insurance. In that case, the religious institution will have to pay the fees for non-coverage as specified in the ACA.
So it’s a question for the theologians. Is this participation satisfactorily remote or not?
February 1st, 2013 | 4:06 pm
Boo, my guess is readers will note the sharp divide between a life-saving blood transfusion and a mere piece of convenience medicine.
February 1st, 2013 | 4:08 pm
The central problem for this mandate is now the make-believe that contraception coverage is cost-neutral. If it truly is cost-neutral, then all that need be done is to make it possible for insurers to provide coverage; but to insist they provide coverage implies that there is indeed an additional cost to insurers, one that will be borne by the employers.
February 1st, 2013 | 4:18 pm
The “no cost for contraceptive coverage” under this accommodation means U.S. taxpayers are paying 100 percent of the cost. This violates the constitutional right to free exercise of religion for any citizen whose conscience informs that contraception is intrinsically evil. One element of the entire debate that has been missing is: “Hey, what about the personal liberty and rights of the faithful?” The bishops, and the clergy, have diminished their voice to some degree by seeking to defend Catholic agencies from this injustice and not Catholics at large. Contraception is not health care, period. This “coverage” is not in the law passed by Congress. It is an interpretation of the rules contained in the law, as afforded to the Secretary of HHS.
February 1st, 2013 | 4:20 pm
It is more than a tragedy when the nation’s chief executive continues to display the most fundamental ignorance concerning the United State’s Bill of Rights, specifically, here the First Amendment.
It is not the government’s place to dictate which citizens or groups of citizens get to exercise their First Amendment rights.
February 1st, 2013 | 4:37 pm
I do not see where the United States government has the power to tell insurance companies that they must provide policies for these specific drugs and services, and that they must absorb all the costs. Will someone, anyone, tell me how that is remotely legal?
Also, I find this line in the fact sheet particularly telling: “Issuers generally would find that providing such contraceptive coverage is cost neutral… improvements in women’s health and fewer childbirths.” Why would it make a woman healthier to, say, surgically sterilize herself or take powerful hormones for decades? Why would it NOT make her LESS healthy by encouraging her to be promiscuous and at risk for numerous STDs? And finally, there is something chilling about the words “fewer childbirths” as a way of controlling costs. Of course all these things are meant to result in fewer childbirths, but something about seeing it in that particular contexts suggests that the whole point of this is to make sure there are fewer people.
February 1st, 2013 | 4:50 pm
No.
February 1st, 2013 | 5:07 pm
As a Church, we must come together in faith, and take decisive action to preserve our integrity of conscience: https://www.facebook.com/usccb/posts/132921660208896
February 1st, 2013 | 5:18 pm
The “no cost for contraceptive coverage” under this accommodation means U.S. taxpayers are paying 100 percent of the cost. This violates the constitutional right to free exercise of religion for any citizen whose conscience informs that contraception is intrinsically evil.
Roy M. Postel,
U.S. taxpayers have been paying to subsidize contraception since Richard Nixon signed The Title X Family Planning program ["Population Research and Voluntary Family Planning Programs" (Public Law 91-572)] into law in 1970.
Medicaid, which is paid for by federal and state taxes, also covers contraception.
February 1st, 2013 | 5:25 pm
“The ‘no cost for contraceptive coverage’ under this accommodation means U.S. taxpayers are paying 100 percent of the cost. This violates the constitutional right to free exercise of religion for any citizen whose conscience informs that contraception is intrinsically evil.”
Roy,
Does the fact that some taxes go to pay for wars violate “the constitutional right to free exercise of religion for any citizen” who is a religious pacifist? Do you think that the government should not use taxpayer money to go to war? Should pacifists be exempt from a certain portion of their taxes?
I’m actually strongly against the HHS Mandate, but I don’t think this particular argument works.
February 1st, 2013 | 8:23 pm
I agree that for-profit employers are still left out. That issue will most likely have to be settled, one way or the other, in court.
As for the what is in the mandate:
I find it, on the whole, to be reasonable. It’s not all I hoped for, but I think it does show some effort at a compromise.
I think Roy Postel is correct when he says that this means that 100% of the contraceptive cost will be paid for by the taxpayer. This isn’t ideal, but it’s better than religious institutions being forced to pay for contraceptives directly.
I reserve my final judgement until I am able to read more. However, I will say, it could have been worse.
February 2nd, 2013 | 12:00 am
What about insurance companies whose owners object to providing coverage of contraceptives on grounds of conscience? Not that there are any (that I know of), but it could happen.
February 2nd, 2013 | 1:29 am
It seems that the new rules leave the situation like this:
For-profit employers: No accommodation whatsoever.
Non-profit “religious” employers with market insurance: Insurer is required to provide separate contraception policy at no cost. Unless we agree with the wildly implausible claim that this will actually save insurers money, this is a cost that necessarily is borne by the employer.
Non-profit “religious” employers with self-insuring plan: The only category this “accommodation” actually substantially helps, it seems like the cost of contraception will here be borne by the federal government. There remain some issues here, however. Do any of these self-insuring plans have in-house benefit administration? If so, the law still requires that they arrange for contraceptive coverage, if not actually provide it.
February 2nd, 2013 | 3:04 am
Why not just have the government pay for everyone’s contraception instead of making insurance pay for it? Why should people who don’t have jobs have to pay out of pocket. Seems to me as long as contraceptives are legal, then they should be available for free to everyone who wants them. If they are already free for medicaid recipients, why not just raise taxes a little bit and make it free for everyone?
February 2nd, 2013 | 2:27 pm
Mike- my guess is you’re not a woman.
February 2nd, 2013 | 2:28 pm
Andrew- the insurance policy is providing the contraception, at the employee’s choice. Nothing different is being required of the employer. They paid for a policy before, they pay for a policy after.
February 2nd, 2013 | 2:30 pm
Gabriel- it actually saves money. You will notice that the insurance industry itself isn’t objecting to this. Unplanned pregnancies are much more expensive than contraception.
February 2nd, 2013 | 2:31 pm
Roy- my conscience informed me that the Iraq War was intrinsically evil. My tax dollars still paid for it.
February 2nd, 2013 | 5:10 pm
“The big change seems to be in the way contraceptive coverage is going to be provided to those enrolled in the health insurance plans offered by the non-exempt religious groups.”
That’s not a change from the accommodation offered a year ago. The only changes seem to be that church-controlled non-profits (so still no hospitals and schools) will be brought into the accounting gimmick and that self-insured organizations have the cost picked up by public exchange fees.
February 3rd, 2013 | 7:21 am
For-profit employers: No accommodation whatsoever.
Look there’s a distinction in law between a church and a business. If a Church needs a pastor and says they won’t hire a Jewish rabbi, no one objects. After all, how can you have a religious church if you can’t use religion as a criteria in selecting its leadership? But if a church happens to buy a Taco Bell franchise and fires all the Jewish employees, that’s discrimination and is illegal (the Ayn Rand libertarian view that a business can do whatever it wants with the public having no say was rejected a long, long time ago).
Do people have a right to ‘practice religion’ when they own a for-profit business? Sure. But those making that case better come up with some definition of what that means that doesn’t sound like a variation on “you can do anything you want if you just raise your hand and say its about your religion”.
In the above example, a person may indeed feel its a religious duty to only hire fellow Christians and not Jews. But he isn’t allowed to operate a Taco Bell like that. If he honestly feels that way then he must opt to find ways to accomodate his religious beliefs to society’s norms (i.e. by becoming a hiring manager for a church) rather than the other way around.
For example, why wouldn’t an employer also be able to deny women health coverage for pregnancies because he asserts women shouldn’t be having babies if they are single and if they are married they shouldn’t be working? For that matter why not let an employer declare that overpopulation is his pet issue and refuse to cover pregnancy for women who already have two kids could only have coverage for abortions or contraception?
February 3rd, 2013 | 10:12 pm
Something that hasn’t received much attention is the witness aspect of all this. Let’s say that a city passed a law mandating that a Catholic hospital display an enormous pro-choice banner on one side of the building, but the city would pay for the costs of installing and maintaining that banner.
I think the hospital could win a religious freedom lawsuit in such a situation, or perhaps a freedom of speech lawsuit. If it is a violation of the First Amendment to prevent someone from sending a message that they want to send, surely it is also a violation to force someone to send a message that they do not want to send.
I think similar reasoning applies in this situation. Making religious groups offer contraception, even if they’re not paying for it, forces them to send the message that they are in favor of its usage when they are not.
February 3rd, 2013 | 10:16 pm
@ Boo
Spare us the whole “contraception is a vital women’s health need that many women wouldn’t be able to afford otherwise” spiel. Generic daily oral contraception is available at Wal-Mart for $9 a month. People can afford to pay $9 a month for their own birth control–it’s hardly a “compelling state interest” as is required under strict scrutiny. There’s going to be bipartisan agreement in overruling this when this goes before the Supreme Court.
http://news.walmart.com/news-archive/2007/09/27/walmart-launches-phase-two-of-prescription-program-with-new-4-medications-increased-savings
February 4th, 2013 | 6:22 am
John
Something that hasn’t received much attention is the witness aspect of all this. Let’s say that a city passed a law mandating that a Catholic hospital display an enormous pro-choice banner on one side of the building, but the city would pay for the costs of installing and maintaining that banner.
This illustrates the problem with the argument. Suppose instead the hospital was paying its employees with prepaid visa cards that would allow them to buy anything they want, but *not* be able to donate to Planned Parenthood who wanted to put up a bit pro-choice billboard.
Clearly your example of them putting up the banner themselves would have huge speech, press and religion problems. The second case though would much more clearly be a case of the hospital violating property rights, trying to control how employees spend money they already earned and were paid.
In other words, call me if the gov’t is saying the hospital must dispense oral contraceptives or do sterilizations itself for its employees. But all the hospital is doing is providing health coverage, how that coverage is used hinges upon the decisions of the individual employees covered.
February 4th, 2013 | 6:31 am
BTW, this also comes down to the question of whether a Catholic Hospital is more like a Church or more like a Taco Bell that may happen to be owned by a church. Given the recent case of a Catholic hospital arguing against a wrongful death suit by asserting legally unborn children are not persons, I’m inclined to see it more as the latter than former…though I’m willing to admit the line is somewhat fuzzy.
February 4th, 2013 | 10:45 am
Generic daily oral contraception is available at Wal-Mart for $9 a month.
John Burford,
The implication is that cheap generic oral contraceptives are the best choice—or at least an adequate choice—for women who want contraception. Many women have health issues that make oral contraceptives a bad choice. Also, “the pill” may be cheap, but it is not the most effective form of contraception available.
February 4th, 2013 | 12:46 pm
Also I’m unaware of any oral contraceptives that do not require a doctor’s scrip. To make matters more complicated, oral contraceptives are sometimes used on women to treat medical conditions rather than as contraception (which the Catholic Church accepts as legitimate). So you now have a very interesting question if you think an employer should have a right to restrict coverage here.
1. Since the doctor’s appointment is required to get the contraception, it stands to reason employers would have to be told when their female employees go to the doctor and what they discussed so appointments that dealt with contraception could be billed directly to the women.
2. If a woman is prescribed contraception for a medical condition, she would have to submit all sorts of details about her medical condition to demonstrate that the script was not for contraception.
Notice men do not have to go through this. Your boss has no idea how often you see your doctor, what you talk about with him, or what he prescribes for you. On top of that it would be illegal for your doc to tell you boss even if he asked!
February 4th, 2013 | 7:17 pm
When either a religious business or a secular business seeks to promote public transit (or employee fitness or employee purchases), they provide a benefit for transit subsidies (or gym memberships or employee discounts) in accord with its values. Taco Bell provides an employee discount to their own food, not to Burger King just because Burger King corrupted a certain political party.
I’m also left wondering how reactive care such as the morning and week after pill has become mandated through the PPACA free preventative care clause.
February 5th, 2013 | 6:35 am
Taco Bell provides an employee discount to their own food, not to Burger King…
They also provide employees with money, which they can use to buy Burger King if they wish. Since the decision to buy Burger King or not is made by the employee and not the employer (despite the employer providing the paycheck), the morality of the decision also rests with the employee. I would not be impressed with an employer claiming he found Burger King immoral therefore had a right to pay his employees only in Taco Bell free food vouchers. And if the gov’t had a law saying a portion of wages had to be paid in the form of money I would not buy the claim that the employer was being forced to violate his religious views (if he had some religious objection to Burger King’s practices)
Likewise a woman using the services of a doctor to get a simple checkup, to get contraception or to have a baby is the agent who is deciding how her health benefits are being used.
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