New Birth Control Rules Appear To Track Supreme Court Suggestion

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Those who favor women being guaranteed no-cost birth control coverage under their health insurance say the new rules for nonprofit religious organizations issued by the Obama administration simply put into force what the Supreme Court suggested last month.

鈥淲e interpret what聽 [the administration] did to be putting into effect that order,鈥 said Judy Waxman, vice president for health and reproductive rights at the . She鈥檚 referring to the controversial Supreme Court order in a lower court case involving Wheaton College, a Christian school in Illinois.

The agreed to by six of the nine justices said Wheaton College need not fill out and send to its insurance company a form opting out of offering the coverage. Instead, it could merely inform the government of its objections.

The unveiled Friday require those with religious objections to providing some or all FDA-approved contraceptives to do exactly that 鈥 notify the government rather than their insurance carriers that they cannot provide the coverage. Many religious organizations had complained that filing the form to their insurance companies, which would then provide the coverage using other funds, would make them 鈥渃omplicit鈥 in providing the benefit. Under the new regulations, the government would subsequently be responsible for notifying insurers, which would then arrange contraceptive coverage.

Religious groups and their attorneys have reacted mostly negatively to the

聽鈥淲e note with disappointment that the regulations would not broaden the 鈥榬eligious employer鈥 exemption to encompass all employers with sincerely held religious objections to the mandate,鈥 said a . 鈥淚nstead, the regulations would only modify the 鈥榓ccommodation,鈥 under which the mandate still applies and still requires provision of the objectionable coverage,鈥 the statement said.

Lori Windham, senior counsel for the , which is representing many of the religious organizations suing over the rules, said it鈥檚 not yet clear how those organizations will respond to the new option.

鈥淭hey have no objection to telling the government they are opposed to providing the coverage,鈥 she said in an interview. 鈥淭he question is what happens next.鈥 Under the new rules, the government 鈥渟till does use their administrators and their health care plans鈥 to make coverage available, she said.

But that is exactly what the Supreme Court suggested should happen, said Waxman of the women鈥檚 law center.

鈥淭he order said nothing will prevent women from getting [benefits] and that鈥檚 what HHS did,鈥 she said. 鈥淭hey said based on the order there鈥檚 an alternative route for nonprofits.鈥

Indeed, while the Court said that Wheaton College could send its letter of objection to the government rather than its insurer, the order went on to say: 鈥淣othing in this order precludes the Government from relying on this notice, to the extent it considers necessary, to facilitate the provision of full contraceptive coverage under the [Affordable Care] Act.鈥

Some experts had worried about the government鈥檚 ability to facilitate the coverage due to the intricacies of ERISA, the federal law that governs pension and health benefits. But the interim rules explicitly give the government the ability to make benefit changes in the absence of the objecting religious organizations.

The rules also address the Court鈥檚 ruling in the , a for-profit company whose owners objected to providing some forms of contraception.

As suggested by the five-justice majority in that case, the rules allow 鈥渃losely-held鈥 companies to also opt out of offering coverage, using the same work-around available to nonprofits. But the rules specifically solicit public comment on what exactly constitutes a 鈥渃losely-held corporation,鈥 since there are varying definitions.聽

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Affordable Care Act

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