But comments submitted by the National Women's Law Center contend contraception must be part of comprehensive reproductive health care, which is "essential in ensuring that women and families are able to lead healthy, productive lives.
"Contraceptive services should not be stigmatized by isolating them from other coverage or services, nor should barriers be created to make securing access to this care more difficult."
The NWLC did agree with the bishops that the latest rule is a bad idea, but for different reasons. The center said expanding the exemption would limit access to contraception coverage, but the NWLC would support the accommodation if the government can assure "seamless coverage" for birth control.
Also weighing in on the proposal was a group of 13 state attorneys general, who wrote that the regulation violates federal law by discriminating between for-profit and nonprofit organizations that claim a religious exemption. The prosecutors are also skeptical of the government's claim that contraceptives would be provided at no cost, calling the plan a “shell game” and an “accounting gimmick.”
“We all know that insurance companies do not provide anything for free," the AGs stated. "The employers are still going to be paying for these services through increased premiums or otherwise even if the insurance company technically covers those products through a separate ‘free’ policy.”
The Center for Inquiry, a secularist group, also spoke against the latest proposed change, calling any religious exemption unnecessary and unwise, and saying HHS has done enough to accommodate religious objectors.
"(Religious groups) see nothing wrong with people not having health care simply because their bosses reject their health needs based on the bosses’ personal religious beliefs," the CFI comments state. "Were HHS to adopt this tortured understanding of religious liberty, our health care system would have religion, not medical necessity, determine the services provided to employees."
Tuttle said SIIA's concerns about the rule would likely carry more weight in court if the group were to sue and claim HHS was arbitrary and capricious in deciding a rule that didn't reflect the dynamics of the marketplace. It's more difficult to prove an agency was arbitrary or capricious when it is weighing the interests of one group against another, he said.
But the remedy in an administrative law case isn't abandoning the rule. Instead, HHS would be ordered to write it over again.
"That not an attractive form of relief," Tuttle said. "They may end up back in the same place or with something slightly worse."
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