Religious non-profits that have sued the federal government over a mandate to provide insurance coverage for birth control reacted with disappointment Friday to the latest offer by the Obama administration to settle the legal standoff.
The latest accommodation does nothing to address the claims made in some 44 lawsuits brought against the government in the past year by schools, hospitals and private businesses saying the mandate violates their religious freedom, said religious liberty advocates.
"After more than a year of litigation our clients and many others like them were hoping for much, much more," said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which represents eight clients suing the government over the mandate. "We are extremely disappointed in seeing this kind of inadequate proposal."
Women's health advocates and liberal religous groups, however, say the measure is responsive to the concerns of faith-based organizations.
Friday's proposed rule is the second attempt by the Obama administration since the Affordable Care Act passed to find middle-ground between faith-based employers that object to contraception coverage on religious grounds and women's health advocates that have lobbied for free contraceptive services under the Affordable Care Act.
“Today, the administration is taking the next step in providing women across the nation with coverage of recommended preventive care at no cost, while respecting religious concerns,” Health and Human Services Secretary Kathleen Sebelius said in a statement. “We will continue to work with faith-based organizations, women’s organizations, insurers and others to achieve these goals.”
The U.S. Conference of Catholic Bishops, which led opposition to the mandate, reserved reaction until it reviews the proposed new rule. Meanwhile, John Gehring, Catholic program director at Faith in Public Life, a liberal advocacy group based in Washington, called the compromise "a strong signal that the administration is responsive to the concerns of Catholic institutions."
Since the initial mandate was issued in late 2011, religious nonprofits like schools, charities and hospitals have asked for the same exemption granted to houses of worship and religious orders. In response, the administration has twice tweaked the mandate to have a third-party step in to provide coverage, which opponents have blasted as an accounting gimmick.
This latest offer proposes religious nonprofits use insurance plans separate from their own to provide contraceptive coverage without "contracting, arranging, paying, or referring for such coverage." For self-insured nonprofits, a third-party administrator would handle the coverage "at no cost to the religious organization."
The proposal states that any additional cost would be covered by a deduction in federal user fees paid by whoever issues the policy. HHS has not tallied an overall cost of the plan, according to Chiquita Brooks-LaSure, a deputy policy director for the agency.
But the department argued the change wouldn't impose new costs on insurers because it would save them money "from improvements in women's health and fewer child births."
Religious liberty advocates and legal representatives for the faith-based nonprofits are skeptical, however, calling the proposal convoluted, opaque and offering no clear guidance that ensures they won't be involved in providing the mandated artificial contraception, including sterilization, to employees. The coverage also includes so-called morning-after pills that some opponents contend are tantamount to abortion.
"The kinds of concerns that our clients ... will have to consider are whether this accommodation leaves them as conduits for the very drugs their consciences do not allow them to cover," Duncan said. "The better solution is to simply allow them to be exempted from the mandate."
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