The Obama administration on Friday issued another set of proposed rules — and asked for yet another round of public comments — in a continuing quest to find a way to ensure that women receive no-cost contraception as part of a package of preventive health services under the 2010 Affordable Care Act without requiring religious employers to violate their beliefs.
The rules largely attempt to flesh out proposals made last year, said administration officials.
"The proposed rules lay out how nonprofit religious organizations, such as nonprofit religious hospitals or institutions of higher education, that object to contraception on religious grounds can receive an accommodation that provides their enrollees separate contraceptive coverage, and with no co-pays, but at no cost to the religious organization," said a fact sheet issued by the Department of Health and Human Services.
The new rules — which will be open for public comment for 60 days — apply only to nonprofit religious organizations that provide health coverage to their employees. These organizations will be given options for ensuring that their female employees have access to contraceptive coverage that does not require the employer "to arrange, contract, pay or refer for," Chiquita Brooks-LaSure, of the Health and Human Services Office of Health Reform, said on a conference call with reporters.
The rules also clarify the definition of "religious employers," who are completely exempt from the requirement to offer contraceptive coverage.
But the rules do not make any accommodation for for-profit companies, even those whose owners have sued to demand the right to exercise their own religious beliefs by refusing to offer such coverage.
That angered those representing the dozens of companies who have filed such lawsuits.
"The administration's narrow gesture does nothing to protect many faith-based employers or religious families from the unconstitutional abortion pill mandate," says Matt Bowman of the Alliance Defending Freedom, a legal group backing some of the suits. "The government has no business putting religious freedom on the negotiating table, or picking and choosing who is allowed to exercise faith."
But others thought it perfectly proper to leave these businesses out of the discussion.
"In our legal system and our society, secular, for-profit businesses — like Hobby Lobby — don't exercise religion and must be regulated to protect their employees and the public," says Elizabeth Sepper of the Washington University School of Law in St. Louis. Hobby Lobby is one of the companies suing over the mandate. "Any other rule would just mean corporations could force religious views on their employees, no matter what the employees' beliefs are," she says.
Under the administration's proposal, nonprofit religious groups would have their employees automatically covered by their insurance companies, at those companies' expense.
For those organizations that are "self insured" and don't have an insurance company providing coverage, the firm that processes their health claims would partner with an insurance company. Both the insurance company and the claims processing company would be reimbursed for the cost of the contraceptive coverage through a lowering of the "user fees" that are to be assessed on insurers who participate in the new health insurance exchanges that begin in 2014.
That proposal, however, didn't fly as an acceptable compromise with some groups.
"The administration claims that it is relieving the employer of the moral conflict by obligating the insurer to pay for the objected-to drugs and services," said a statement from the National Right to Life Committee. "This is a subterfuge, since the employees would not be getting the objected-to services if the religious employer was not paying for the health plan."
But a key group that held its fire — for now — was the U.S. Conference of Catholic Bishops, which has been spearheading opposition to the requirements. It issued a brief statement saying that they "welcome the opportunity to study the proposed regulations closely" and "look forward to issuing a more detailed statement later."
Final regulations on the matter are expected this summer, administration officials said.
MELISSA BLOCK, HOST:
This is ALL THINGS CONSIDERED, from NPR News. I'm Melissa Block.
AUDIE CORNISH, HOST:
And I'm Audie Cornish. Today, the Obama administration waded back into the fray over the Affordable Care Act and birth control. The law calls for women to receive birth control at no cost, and many women are already getting that benefit. It took effect for most insurance plans last August. But the fight continues with religious employers, who say providing the benefit violates their beliefs.
NPR's Julie Rovner is here to explain what the administration had to say about that today. Hey there, Julie.
JULIE ROVNER, BYLINE: Hey, Audie.
CORNISH: So we're talking about a new set of regulations. What are they?
ROVNER: Well, this is part of a so far, not completely successful effort to find a way to ensure that women don't face financial barriers to getting contraception while at the same time, ensuring religious employers freedom of religion. Here's how Health and Human Services official Chiquita Brooks-LaSure put it, this afternoon.
CHIQUITA BROOKS-LASURE: No nonprofit religious institution will be forced to pay for or provide contraceptive coverage.
ROVNER: But at the same time, she said, of those covered by religious universities or hospitals...
BROOKS-LASURE: Women who work, or go to school, at these institutions will have free contraceptive coverage and will no longer have to pay hundreds of dollars a year that could be going towards rent or groceries.
CORNISH: So Julie, help us understand this. If religious institutions won't have to pay for this contraceptive coverage and women won't, either - I mean, who will?
ROVNER: Well, that's been the big question all along since the administration first floated this concept last year. The idea is that since paying for birth control is less expensive, in the aggregate, than paying for pregnancy and childbirth, the health insurance company would be happy to pay for it; and that's what the rules require.
But not every employer has health insurance through a health insurance company. Many are big enough to be what's called self-insured. That means they cover their own health bills and hire a company just to process the claims. But those claims-processing companies wouldn't save money by paying for contraception because they're not really acting as insurers.
CORNISH: So in that case, who would pay for the contraception?
ROVNER: Well, what the administration is proposing is that those third-party companies go out and find an insurance company to partner with. And both the insurance company and the third-party claims payer would get paid through a reduction in fees the insurance company will start paying next year. to participate in these new health market places called health exchanges. It's kind of - no, it's very complicated, but the hope is that it could produce a workable compromise to what's been a very thorny issue for the administration.
CORNISH: So what's been the reaction to this?
ROVNER: Well, the loudest complaints had been coming from the Catholic Church. They've, obviously, got the biggest dog in this fight with thousands of schools, universities, hospitals and charities waiting to see how this would all play out. The U.S. Conference of Catholic Bishops this afternoon issued a very cautious statement, saying they want to take a closer look at the details. But a couple of reporters did catch up with Conference President Cardinal Timothy Dolan, who said he was, quote, "pleasantly surprised by what he'd seen" - though that is no guarantee of an endorsement.
CORNISH: And the reaction on the flipside?
ROVNER: Well, most women's health groups said they were pleased that women who work for religious employers won't be denied this benefit. But those who are most unhappy are the those who represent the for-profit companies who have been suing over the requirement. These are people who own everything from bookstores to heating and cooling companies. They say they don't want to offer contraceptive coverage to their workers because of their own, personal religious beliefs. They are not included in this latest attempt at a compromise; only nonprofits who are affiliated with organized religions are. And remember, this still isn't the final word. Final rules aren't expected until later this summer.
CORNISH: Julie, thank you for explaining it.
ROVNER: Thank you, Audie.
CORNISH: NPR's health policy correspondent, Julie Rovner. Transcript provided by NPR, Copyright NPR.