Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Deciphering the Administration’s New Proposed Rules on the Contraceptive Mandate

Stanley Carlson-Thies


February 22, 2013

By Stanley Carlson-Thies

An earlier version of this article was originally published in the Institutional Religious Freedom Alliance eNewsletter for Faith-Based Organizations on February 5, 2013. 

On Feb. 1, the federal government released another iteration of its attempt to respond to the religious freedom and conscience concerns raised by the health reform law's requirement that health plans must include a wide range of free preventive women's health services, including contraceptives, sterilization and emergency contraceptives that many consider to be abortifacients. Some have celebrated the proposals as resolving long-standing religious freedom concerns, but there is little that is new and every reason to expect that protests and lawsuits (nearly 50, from religious nonprofits and from businesses operated by religious owners) will continue.

No actual new or revised regulations were announced. Instead the government released "proposed rules," and is accepting comments until April 8.  These proposals may yet be modified or withdrawn. 

Currently, only "religious employers" are exempted from the contraceptives requirement. The definition of an exempt religious employer specifies that the organization must meet all of these criteria: (1) has as its purpose the "inculcation of religious values"; (2) primarily employs co-religionists; (3) primarily serves co-religionists; (4) falls within Internal Revenue Code sections that refer to nonprofit organizations that are churches, their integrated auxiliaries, conventions or associations of churches, and the "exclusively religious activities of any religious order."

In its proposed rules, the administration drops all but the last criterion, seeking to clarify that a church is not disqualified from the exemption by providing "benevolent services" to the community. A significant number of church-related schools likely also fit the IRS classification of being an "integrated auxiliary" of a church.

A year ago, after wide-ranging protests that its definition of exempt religious employers did not protect the many religious organizations that are not houses of worship, the government promised to fashion an "accommodation" that would respond to their religious freedom claims and also providing free contraceptives coverage for their employees.  

According to the proposed new rules, a religious employer is eligible for the accommodation if: 1) it is opposed for religious reasons to providing some or all of the contraceptive services; (2) it is organized and operated as a nonprofit; (3) it holds itself out as a religious organization, and (4) it self-certifies that it fulfills criteria 1-3.

The good news is that a religious organization need object only to some of the contraceptives, e.g., the abortifacients; it need only "hold itself out" as a religious organization, rather than matching some detailed government list of religious characteristics; and it self-certifies, rather than being subject to some official's probing.

Yet the government still insists that businesses have no religious or conscience claim. In considering requests by businesses for preliminary injunctions against the mandate, however, in a majority of the cases so far ruled on, the courts have granted relief to the religious business owners.  

What about the proposed accommodation? Objecting religious employers will be able to buy health insurance that does not cover some or all contraceptives.  But then, “automatically,” the insurer will give (not offer) to each of the employees a separate policy that provides, for free, exactly the contraceptive services to which the employer has a religious objection.

The government insists that an insurer can provide the contraceptives at no net cost to itself because with expanded use of contraceptives, there will be fewer costly pregnancies, problem pregnancies and unhealthy newborns. Maybe. Still, it is those employees of that organization that get precisely the contraceptives coverage that the organization believes it ought not to provide to its employees.

Complicating matters, many religious organizations self-insure—in some cases exactly so that they could escape from covering contraceptives. Almost a year after the first proposed rules were announced, the administration has yet to design an actual "accommodation" for self-insuring employers.

Various commentators have celebrated the proposed rules as just the solution to the conundrum created by the administration and the health law. But many religious organizations and persons of faith are not celebrating. First, only houses of worship are exempt from the mandate, while faith-based service organizations are promised only an "accommodation." That accommodation, while purportedly allowing organizations to exclude from the health insurance they offer their employees contraceptives coverage to which they object, will result in the employees being given the same contraceptives coverage, just in a different way.

Moreover, for-profit companies, no matter how religious their aims and activities (a religious broadcaster, publisher, bookstore, retirement home, camp), and no matter the desire and policy of their owners to operate in accordance with the tenets of their religion, receive no religious freedom protection whatsoever.

The rules proposed on Feb. 1 include some genuine advances. But there is no magic. It still is not possible for the religious objections of employers to contraceptive coverage in their health insurance to be adequately respected while at the same time having some other entity automatically give that contraceptive coverage to the employees, just by another path 

—Stanley Carlson-Thies is president and founder of the Institutional Religious Freedom Alliance and serves as a Fellow of the Center for Public Justice.

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