Revised and extended

The Department of Health and Human Services (HHS) released long-promised changes to the new healthcare law’s contraceptive mandate on Feb. 1 that were supposed to accommodate the objections of religious nonprofits. They instead cemented the administration’s position.

The agency mostly adopted the regulations it proposed last March, which require that religious organizations provide insurance policies to their employees that cover contraceptives, sterilization, and abortion-inducing drugs. Planned Parenthood applauded the HHS announcement.

HHS said it would accommodate religious organizations by requiring insurers to provide the mandated coverage to employees separately, for free, without charging the nonprofits for it. Religious organizations dismissed this proposal last year as an accounting shell game.

The new regulations do expand the religious employer exemption from the mandate slightly: church-affiliated organizations now can be completely exempt from the mandate. Previously, only churches were exempt.

Alliance Defending Freedom’s Matt Bowman, a lawyer handling a number of the cases against the mandate, said the proposal still made unconstitutional distinctions. “All Americans are guaranteed religious freedom, not just churches,” he said.

The new regulations came in a Notice of Proposed Rulemaking (NPRM), which means they are on the verge of becoming final. Typically, agencies issue an NPRM and then allow a period of comment before adopting the final regulations. The period of comment for the contraceptive mandate regulations ends April 5. The agency could continue to delay a final rule by asking for more information after April 5, but courts have asked the government to hurry up with this particular regulation.

In announcing the new proposal, HHS officials said they expect to adopt a final regulation for religious nonprofits by this summer. Up to this point, courts have thrown out most of the lawsuits brought against the mandate by religious nonprofits because the exemption wasn’t finalized.

Bowman described the proposed “accommodation” as an “accounting gimmick” that was “insulting to the intelligence.”

Reporters on a conference call with two HHS officials on the day of the announcement seemed bewildered by the proposal. Almost every question focused on how insurance companies would provide contraceptives to women for free.

“Who is paying for it?” one asked. “Who is subsidizing this?”

Most confusing is how the proposal would work for religious organizations that self-insure. In those cases, HHS has said a third party administrator would see to it that female employees receive contraceptive coverage from another insurer at no cost.

The regulations will not provide any exemption for religious business owners, according to the current draft. Some business owners’ cases against the mandate have found success so far in court. At the beginning of February both the 7th and 8th U.S. Circuit Courts of Appeals handed down preliminary injunctions against the mandate on behalf of two religious business owners.