In it, but not of it. TPM DC

Obama Admin Offers Hobby Lobby Workaround On Birth Control

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AP Photo / Jacquelyn Martin

A new "proposed rule" by the Department of Health and Human Services lets female employees of for-profit businesses, like Hobby Lobby, obtain birth control directly from their insurer, at no extra cost, if their boss opts out of covering the service in the company's insurance plan for religious reasons.

The move extends an accommodation that already exists for non-profit organizations, which are allowed to refuse to cover for birth control. In short, the religious owners can pass the cost on to the insurer so that they're no longer complicit in what they view as sin.

"Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work,” said HHS Secretary Sylvia Burwell. "Today's announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by non-profit organizations and closely held for-profit companies."

The Supreme Court ruled in June that owners of closely held for-profit corporations cannot be required, under Obamacare, to cover emergency contraception like Plan B, Ella and two types of IUDs if it violates their sincerely-held religious belief. The HHS move is a workaround to that ruling.

In the same announcement, HHS also unveiled an interim rule tweaking the nonprofit accommodation, in an effort to put an end to a separate lawsuit against it. Instead of informing the insurer or third-party administrator directly, the new rule says, an objecting employer will have to notify the government, which will inform the insurer.

The existing rule requires objecting employers to directly inform their insurer, at which point the insurer must pay for it. Some entities, like Wheaton College, sued and said that also violates their religious belief because it amounts to a "permission slip" for contraception. The theory is that under the new rule, it'll be the government that triggers the provision of birth control, not the employer.

An HHS official told TPM the administration expects the new rule to put an end to the pending litigation.

"The interim final regulations are consistent with the Court's order in Wheaton College, which required the objecting religious employers to write HHS letters
saying they refused to provide the coverage for religious reasons," said the official. "We will also provide a model notice that eligible organizations may, but are not required to use."

Despite the administrative actions, the HHS official called on Congress to pass a legislative solution to "ensure women get access to services they need."

In his opinion for the Supreme Court, Justice Samuel Alito floated this workaround as a viable option for the Obama administration. "The Government could ... extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate," he wrote. "That accommodation does not impinge on the plaintiffs' religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS's stated interests."

Cecile Richards, the president of the Planned Parenthood Action Fund, praised the move.

"Once again, we’re reminded of the great lengths opponents are willing to go to put barriers between women and their birth control. While the Obama Administration is working hard to protect women's access to birth control in the face of harmful Supreme Court decisions, today's notice also serves as a stark reminder of what is at stake for women in this country when it comes to affordable basic health care," she said in a statement. "Congress needs to act to protect birth control access."

The Family Research Council, a socially conservative group, dismissed the proposed rule as "an insulting accounting gimmick does not protect the rights of Americans with sincere conscientious objections." While the organization has no direct involvement in the litigation, it's a sign that religious conservatives may not be satisfied with the new rule.