Contraception Mandate Changed to Appease Religious Right: Will It Be Enough?
Last week the U.S. Department of Health and Human Services issued new proposed rules for the copay-free birth control benefit under the Affordable Care Act, clarifying how the implementation of the benefit would affect women who work for organizations that claim a religious objection to contraception. The regulations continue to exempt most religiously affiliated groups from having to comply but, at first read, looks to continue to ensure that women will have birth control covered in their insurance plans at no additional cost to them.
Like most regulations, the devil is in the details on the new birth control rule. The revision broadens the definition of who qualifies as a religious organization by defaulting to the same definition applied by the Internal Revenue Service. Significantly, the rule makes a clear distinction between non-profit organization and for-profit companies like Hobby Lobby who have tried to exploit the religious exemption and avoid coverage.
Initial reaction to the proposed rule was mostly positive. Nancy Northup, president and CEO at the Center for Reproductive Rights issued a statement in praise of the change, with one caveat:
The Obama Administration has once again made it clear that it is committed to advancing women’s health by making copay-free contraception a reality for millions of women in the United States. However, we continue to believe that contraception should not be separated from the rest of women’s health insurance coverage. Women should not be forced to jump through additional hoops to get basic preventive health care simply because their employer disapproves of birth control.
…An employer would never be permitted to dictate how an employee spends money from her salary or how she uses her time on a paid vacation day. Similarly, employers shouldn’t be allowed to discriminate against women by deciding what affordable health care is available to them—particularly services that medical and public health communities cite as essential to women’s health. We will be reviewing this proposed rule closely and monitoring its implementation to ensure that this historic advancement in women’s reproductive health is actually accessible to all American women.
Marcia D. Greenberger, Co-President of the National Women’s Law Center made it clear that while this could be considered an initial victory, the fight was far from over:
The National Women’s Law Center applauds the Obama administration’s continued commitment to women’s health and to fulfilling the promise of the Affordable Care Act. Our overriding concern is that women have meaningful access to essential preventive health care services, like birth control, without co-pays or deductibles. We look forward to reviewing and commenting on the proposed regulation in detail to ensure that women are able to make personal health decisions without interference by their bosses. The Center will also continue to fight in the courts and in other arenas across the country to protect women’s access to this critical preventive health care.
On-line activist group UltraViolet’s Co-Founder Nita Chaudhary praised the rule change but was quick to point out the rule would only be as good as its rigorous enforcement:
Our 375,000 members in every state and congressional district are thrilled that the Obama Administration is finalizing no-cost contraception for women under the Affordable Care Act. In a country where 99% of women will use birth control at some point in their lives, and where one out of every three will have trouble affording it, this rule has the potential to revolutionize women’s health and our economic security. However, this rule can only improve women’s lives if it is thoroughly implemented and enforced. Many UltraViolet members are still battling with their insurance companies to get access to already promised no-cost contraception. All of this must stop. So [today], we thank Secretary Sebelius and President Obama for their leadership in what has the potential to be a game changer for American women. But we also call on the Obama Administration to hold insurance companies accountable and ensure that women everywhere can access this benefit.
That women’s groups came out in support of the proposed rule is not that much of a surprise, but according to ThinkProgress, even some religious organizations have gotten on board with the proposal. The true test will be in the coming weeks as organizations decide if they want to continue to pursue legal challenges to the rule or if the change is sufficient enough to meet their concerns that institutional religious organizations will be forced to compromise religious beliefs in order to comply.
Maybe I’m just a tad too cynical, but I don’t see the Catholic Bishops calling off the over forty lawsuits currently in the courts pipeline, nor do I see businesses like Hobby Lobby suddenly deciding to end their lawsuits and comply. As it stands there are at least two appellate courts that have blocked the mandate initially as applying to a for-profit business and one that has not. That means its likely the Supreme Court will settle the split in opinions. And that’s exactly the point of the fight over the birth control benefit. This has never been about contraception as much as its become a proxy to re-litigate the Affordable Care Act. If we can be certain of anything it is that conservatives opposed to making health care widely available and affordable will do everything in their power to challenge the one piece of legislation designed to do just that.
Photo from nateOne via flickr.