HHS announces final rules, delay in implementation of contraceptive mandate
Marisa Iati | Thursday, July 4, 2013
The Obama administration announced on Tuesday a one-year delay in implementing the final rules regarding the Affordable Care Act’s mandated contraceptive coverage.
The White House released the final rules Friday, in response to concerns raised by non-profit religious organizations about the original healthcare proposal. The mandate will take effect in 2015.
The final rule states that an organization that objects to providing contraceptives on religious grounds can offer employees a plan that does not provide contraceptive coverage. The health insurer administering the plan then enrolls employees in a separate, individual, private policy that only covers contraceptives at no extra cost.
Notre Dame is self-insured. A self-insured organization that objects to providing contraceptives can notify its third-party healthcare administrator that it objects.
The administrator then “notifies enrollees in the health plans that it is providing or arranging separate no-cost payments for contraceptive services for them for as long as they remain enrolled in the health plan,” according to the Department of Health and Human Services (HHS) website.
University Spokesman Dennis Brown said, “We are studying the ruling and, once that’s complete, will evaluate our options.”
HHS Secretary Kathleen Sebelius said on the department’s website that the final rules guarantee women free access to preventive services recommended by the Institute of Medicine, an arm of the National Academies of Science.
“[The] announcement reinforces our commitment to respect the concerns of houses of worship and other non-profit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work,” Sebelius said.
Law professor Rick Garnett, an expert on religious liberty cases, said litigation against the mandate likely will continue. He said some non-exempt religious organizations will argue that the final rules, like the original ones, impose a substantial and unnecessary burden on the free exercise of religion.
“In response, it will be contended that it is these groups’ insurance carriers, and not the groups themselves, that are providing the objectionable coverage,” Garnett said. “It is likely that different courts will resolve the issue in different ways, which raises the possibility that eventually, the Supreme Court will be asked to weigh in.”
In May 2012, Notre Dame filed one of more than 40 religious liberty lawsuits from faith-based organizations contesting the constitutionality of the contraception mandate. The lawsuit stated the mandate would go against Church teachings and therefore would violate the First Amendment, the Religious Freedom Restoration Act and other federal laws.
A federal judge dismissed Notre Dame’s lawsuit in early January, when U.S. District Court Judge Robert Miller Jr. ruled the University’s claim was not yet “ripe,” meaning it was not ready to be litigated. This was the case because the rule regarding contraceptive coverage had not been finalized.
The University declined to provide public comment on the iteration of the mandate that the Obama administration proposed in February.