White House revises birth control rules to comply with Hobby Lobby

Seeking to quell a politically charged controversy, the Obama administration announced new measures Friday to allow religious nonprofits and some companies to opt out of paying for birth control for female employees while still ensuring those employees have access to contraception.

Even so, the accommodations may not fully satisfy religious groups who oppose any system that makes them complicit in providing coverage they believe is immoral. The administration's hope is that the new accommodation will be more palatable because it creates more distance between religious nonprofits and the health services they believe are immoral, by inserting the government as a middleman between nonprofits and their insurers.

But the Family Research Council, a socially conservative group, dismissed the new accommodation as an "insulting accounting gimmick" that still leaves businesses and nonprofits complicit in something they view as immoral.

Effective immediately, the U.S. will start allowing faith-affiliated charities, colleges and hospitals to notify the government — rather than their insurers — that they object to birth control on religious grounds. A previous accommodation offered by the Obama administration allowed those nonprofits to opt out of paying for birth control by submitting a document called Form 700 to their insurers, but Roman Catholic bishops and other religious plaintiffs argued just submitting that form was like signing a permission slip to engage in evil.

To opt-out of paying for contraceptives without using Form 700, religious nonprofits can send a letter to the Health and Human Services Department that includes the organization's name, the type of health plan they offer and the name and contact information for their insurance issuers or third-party administrators, officials said. Groups must also explain which types of birth control they object to and state the objection is based on sincerely held beliefs.

The administration's proposal to let companies like Hobby Lobby use Form 700 will apply only to "closely held" corporations that are owned by families or a small number of investors. The government is asking for the public's input about how narrowly to define a "closely held" corporation, meaning the rule-making process will drag out for many months before the fix is finalized.

In a related move, the administration announced plans to allow for-profit corporations like Hobby Lobby Inc. to start using Form 700. The Supreme Court ruled in June that the government can't force companies like Hobby Lobby Inc. to pay for birth control, sending the administration scrambling for a way to ensure their employees can still get birth control one way or another at no added cost.

The dual decisions mark the Obama administration's latest effort to address a long-running conflict that has pitted the White House against churches and other religious groups. The dispute has sparked dozens of legal challenges, fueling an election-year debate about whether religious liberty should trump a woman's access to health care options.

"What these rules do is help ensure that women have access to contraceptive coverage" while respecting religious beliefs, said White House spokesman Eric Schultz.

Yet the latest proposals will likely run up against the same objections, because they still enable employees to receive contraception through their health plans — one of a range of preventive services required under President Barack Obama's health care law.

"We will be studying the new rule with our clients, but if today's announcement is just a different way for the government to hijack the health plans of religious ministries, it is unlikely to end the litigation," said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty. The fund has represented both Hobby Lobby and Wheaton College, an evangelical school whose case also made its way to the Supreme Court.

In June, the high court ruled that the government can't force companies like Hobby Lobby Inc. to pay for birth control. In another blow to the Obama administration days later, the justices sided with religious nonprofits like Wheaton who said that forcing nonprofits to fill out Form 700 to avoid paying for birth control still constituted a violation of their religious freedom.

The new fixes unveiled Friday appear to embrace suggestions included in both of the Supreme Court rulings.

In the Hobby Lobby case, Justice Samuel Alito suggested that one way to address the problem would be to offer the Form 700 accommodation to some for-profit companies. And in the Wheaton case, the court said that while the case is being appealed, Wheaton could temporarily avoid Form 700 by simply sending a letter to the government indicating its objections.

Yet that temporary fix for Wheaton exempted the college from covering contraception altogether. The letters the administration will now allow nonprofits to send would trigger a process by which the government will instruct a nonprofit's insurer or third-party administrators to take on the responsibility of paying for the birth control, at no cost to the employer. That means that ultimately, employees would still get birth control through their employer-provided plans.

The Associated Press