From BJC staff reports, with reporting from Religion News Service and Associated Baptist Press
The Obama administration issued final rules June 28 regarding employer-provided birth control coverage under the nation’s health care law. The announcement did not end controversy that has surrounded the policy since it was first proposed in August 2011. While the Catholic Health Association, which represents Catholic hospitals across the country, said it no longer objects to the mandate that all employees receive contraceptive coverage, others remain dissatisfied.
As the largest private health care provider in the nation, the CHA is a critical player in health care issues. Its decision to affirm the final contraceptive coverage rules puts the hospitals at odds with the Catholic hierarchy and others who rejected the White House’s final regulations on an issue that many conservatives say is evidence of the administration’s hostility to religious freedom.
The controversy began in 2011 when the Department of Health and Human Services announced that, as part of health care reform, it was proposing regulations that would require most nonprofit and for-profit employers to include free contraception coverage — including morning-after pills and sterilization — in employee health insurance plans.
The original HHS regulations included an exemption for houses of worship.
Many religious groups, led by the U.S. Conference of Catholic Bishops, denounced that exemption as too narrow and a serious infringement on religious freedom. The administration modified the regulations at various points after negotiations with the bishops, the CHA and others affected by the mandate.
While Catholic organizations like the CHA generally saw the negotiations as productive and considered a solution within reach, the bishops — joined by a growing number of evangelical and conservative groups — were unconvinced.
The June 28 regulations significantly expanded the exemption for religious organizations — exempting, for example, religious institutions even if they employ people of different faiths. The rules also stated that any other faith-based nonprofit that objected to the policy would not have to include the contraception rider in its health insurance plans. Instead, the employer’s health insurance provider or administrator would separately arrange for contraceptive services and cover any costs to employees, which were expected to be negligible.
In issuing its final rules, the administration extended the existing “safe harbor” for those objecting to the contraception mandate, giving them until January 2014 to comply with the regulations.
After the final rules were released, opponents of the mandate maintained that, without additional relief, objecting employers could be forced to provide coverage for medication and sterilization procedures that they believe are tantamount to abortion.
“The Obama administration insists on waging war on religious freedom, and the final rule issued today confirms that,” said Gregory S. Baylor, a lawyer with the conservative legal group Alliance Defending Freedom.
Sister Carol Keehan, head of the CHA, disagreed. “If you look at the final regulations it is very clear that we do not have to contract for, or pay for, or arrange for [contraception coverage],” Keehan said in a July 9 interview.
“It was really important that this be workable from a legal and theological perspective,” she added. “That’s what we believe we have achieved.”
However, leaders of the U.S. Conference of Catholic Bishops joined with leaders of other denominations and faiths to send an open letter July 2 to all Americans. The letter called the policy “coercive” and said it “puts the administration in the position of defining — or casting aside — religious doctrine.” Those signing the letter included leaders from the Southern Baptist Convention, the Church of Jesus Christ of Latter-day Saints, Focus on the Family, the Church of Scientology, the International Society for Krishna Consciousness, Catholic colleges and other groups.
Challenges to the mandate are also pending in the courts. More than 60 lawsuits have been filed by Catholic institutions and other predominantly Christian groups, as well as some for-profit businesses with religious owners, who argue that the refusal to comply with the mandate will unfairly subject them to huge fines and could force them to close. Observers predict the lawsuits against the mandate are likely to have been adjudicated by the U.S. Supreme Court by the end of the “safe harbor” period.
Hobby Lobby, a for-profit arts-and-crafts chain suing the government over the mandate, won a round in June in its bid to refuse certain contraception coverage to employees. The 10th U.S. Circuit Court of Appeals found Hobby Lobby was likely to succeed on its claim under the federal Religious Freedom Restoration Act and returned the case to district court, where Hobby Lobby was granted temporary relief from the mandate July 19.
On July 26, the 3rd U.S. Circuit Court of Appeals ruled that a for-profit, secular corporation cannot exercise religion under either the First Amendment or RFRA. It acknowledged its holding sits in direct tension with the 10th Circuit’s Hobby Lobby analysis. This is the first split among federal circuit courts in the contraception mandate litigation and has led to further speculation that the issue will ultimately reach the Supreme Court.
From the July/August 2013 Report from the Capital. Click here for the next article.
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