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Six questions and answers about the new contraceptive rule

The Obama administration has unveiled proposed rules spelling out how birth control expenses will be covered for employees of religious-affiliated groups opposed to contraception.

Here are some common questions and answers that help explain the administration’s contraceptive policy and the opposition.

Q. What does the new regulation require?

A. Under the rule, women employed by nonprofit religious organizations opposed to contraceptives, such as Catholic hospitals or colleges and student health plans, are entitled to get contraceptive services and products without a co-payment. But the organization is not required to bear the cost of the service.

In those workplaces, the employer must tell its insurer that it will not cover the costs, and the insurer automatically would notify workers that it will provide the coverage without cost sharing or other charges through separate individual health insurance policies, according to a fact sheet released by HHS.

In the rule, the administration says this procedure “would alleviate the need for the eligible organization to contract, arrange, pay, or refer for contraceptive coverage while providing contraceptive coverage to plan participants and beneficiaries at no additional cost.” It also says this should not increase costs for the insurer and may save money by eliminating some pregnancies.

The procedures will be a bit different for religious-affiliated workplaces that self-insure, which means the employer assumes the risk of the insurance but generally hires a private firm—often an insurer—to handle the administration of the coverage. In these plans, the administrator would “work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies,” the fact sheet says. The insurer could offset the costs of those policies through an “adjustment” in the fees that will be charged to insurers participating in the health marketplaces.

Q: What led to this proposal?

A: Last year, the administration announced that all insurance plans would be required to cover contraception as part of the list of free preventive services mandated by the 2010 federal health law. That regulation exempted houses of worship, like churches, from the requirement to provide contraceptive services at no cost to employees, but religious-affiliated institutions, such as universities and hospitals, would have to provide coverage for contraception.

Some religious groups, including the United States Conference of Catholic Bishops, objected on the basis that it violated their religious freedom. The resulting furor quickly engulfed the White House and even some Democrats and Catholic groups that had supported the health law, such as the Catholic Health Association, turned against the policy.

Last February, President Barack Obama said the administration would revise the policy to make sure that the religious-affiliated groups did not have to pay for the coverage. But while announcing a compromise, he also insisted that women working at those groups should have access to contraceptives without charge. "No woman's health should depend on who she is or where she works or how much money she makes," Obama said at the time.

Q. What was the nature of the opposition to the initial rule?

A. Catholic religious leaders and Republican politicians characterized the rule as an attack on religious liberty and an overreach by the Obama administration. The U.S. Conference of Catholic Bishops led the opposition, with dozens of bishops all over the country making statements against it. Several bishops said that they would have no choice but to stop insuring employees altogether if the contraception mandate goes into effect.

The Catholic opposition is rooted in belief that life begins at conception and, therefore, anything that prevents conception is a sin. Though surveys have shown that as many as 98 percent of Catholic women have used birth control at some point, a survey last year found that voters are split over the question of whether employers such as Catholic hospitals and universities should be required to provide contraceptive insurance coverage for employees.

Q: Wouldn't this mean that the religious institutions would still pay for birth control as part of the insurance they provide to their workers?

A: Administration officials say no. While birth control will be covered, by not requiring employers to pay anything additional or to tell employees how to get the services, the administration believes it has brokered a satisfactory compromise. White House officials said last year that actuaries they consulted said that covering contraceptive services would not increase costs for employers and could actually save insurers money by preventing pregnancy. They pointed to the Federal Employees Health Benefit plan, which had no increase in premiums after contraception coverage was added.

The trade association for insurers, America's Health Insurance Plans, issued this statement last year from Press Secretary Robert Zirkelbach: “Health plans have long offered contraceptive coverage to employers as part of comprehensive, preventive benefits that aim to improve patient health and reduce health care cost growth. We are concerned about the precedent this proposed rule would set. As we learn more about how this rule would be operationalized, we will provide comments through the regulatory process."

Q. How does the new federal rule and religious exemption compare with contraceptive coverage laws currently on the books in states?

A. The big difference is that under the federal rule birth control will be available without the employee being responsible for a copayment. That is currently true in just a handful of states. Some 28 states have mandated coverage of birth control, and 20 of those have some sort of exemption for religious employers. According to a report by the Guttmacher Institute, the state exemptions range from very narrow definitions, such as only for churches, to broader exemptions, including religious elementary and secondary schools. The most expansive state exemptions allow religious-affiliated colleges and hospitals not to provide birth control coverage.

The federal compromise cleaves closely to laws on the books in Hawaii, Connecticut and West Virginia. In all of those states, insurers must cover contraceptives for employees of institutions who choose not to do so for religious reasons. The federal rule, though, is unlike state laws that require the religious employers to tell workers where contraception coverage is available.

Q. What about the legal challenges to the plan?

The mandate to cover contraceptive care has inspired at least 44 lawsuits against the government, according to The Becket Fund for Religious Liberty, a legal organization fighting the mandate. The plaintiffs, who include private employers with strong religious views, generally argue that the contraception policy conflicts with the 1993 Religious Freedom Restoration Act, which prohibits the federal government from imposing a "substantial burden" on a person's "exercise of religion" unless it can prove that doing so is "the least restrictive means of furthering [a] compelling governmental interest." 

The administration contends that the mandate is only an indirect burden on religious employers. Courts around the country are taking up the cases and results have been mixed. Some scholars believe the issue could land eventually at the Supreme Court.

The proposed rule does not provide the non-religious businesses who are suing the same ability to avoid providing contraceptive coverage that is afforded religious-affiliated groups.