How the White House Is Changing Obamacare to Comply With Hobby Lobby

HHS released new regulations on the law’s contraception mandate

National Journal
Sam Baker
Aug. 22, 2014, 10:26 a.m.

The Obama ad­min­is­tra­tion re­leased new plans Fri­day to soften Obama­care’s con­tra­cep­tion man­date in re­sponse to the Su­preme Court’s Hobby Lobby rul­ing.

Cer­tain for-profit com­pan­ies, like Hobby Lobby, will be able to avoid dir­ectly cov­er­ing birth con­trol, us­ing the same “ac­com­mod­a­tion” avail­able to em­ploy­ers like Cath­ol­ic hos­pit­als and uni­versit­ies.

The Health and Hu­man Ser­vices De­part­ment also pro­posed new guidelines for how em­ploy­ers should re­gister their re­li­gious ob­jec­tions to cov­er­ing birth con­trol””an at­tempt to ac­com­mod­ate re­li­gious groups that ob­ject to filling out a par­tic­u­lar form.

The Af­ford­able Care Act re­quires most em­ploy­ers to in­clude all FDA-ap­proved con­tra­cept­ives in their work­ers’ health care plans, without char­ging a co-pay or de­duct­ible. But some busi­ness own­ers said the re­quire­ment would force them to vi­ol­ate their re­li­gious be­liefs.

The Su­preme Court ruled in June that “closely held” cor­por­a­tions do not have to com­ply with the birth-con­trol man­date if their own­ers have a re­li­gious ob­jec­tion. The court said HHS should find a less re­strict­ive means of en­sur­ing that wo­men have ac­cess to con­tra­cep­tion cov­er­age, and HHS out­lined that op­tion on Fri­day.

Un­der HHS’s latest pro­pos­al, closely held for-profit com­pan­ies would be able use the same work­around as re­li­gious-af­fil­i­ated em­ploy­ers, such as Cath­ol­ic hos­pit­als.

If those em­ploy­ers ob­ject to cov­er­ing cer­tain forms of con­tra­cep­tion in their health care plans, they can push the cov­er­age bur­den to their in­sur­ance com­pan­ies. The em­ploy­ers don’t have to pay for the cov­er­age or tell em­ploy­ees how to use it, and in­surers are pro­hib­ited from pad­ding the com­pany’s premi­ums to pay for the be­ne­fit.

The White House has said the work­around won’t be a prob­lem for in­sur­ance com­pan­ies be­cause con­tra­cep­tion is re­l­at­ively in­ex­pens­ive””and far less ex­pens­ive than cov­er­ing a preg­nancy and a child.

The Beck­et Fund for Re­li­gious Liberty, which has helped co­ordin­ate the leg­al chal­lenges to the man­date, said it was still re­view­ing the pro­pos­al, call­ing it “the latest step in the ad­min­is­tra­tion’s long re­treat” from the ori­gin­al man­date.

Also on Fri­day, HHS pro­posed changes in the pro­cess re­li­gious em­ploy­ers use to claim an ex­emp­tion. Em­ploy­ers can no­ti­fy the gov­ern­ment that they ob­ject to cov­er­ing birth con­trol, rather than send­ing a no­tice to their in­sur­ance com­pany.

Some re­li­gious groups, in­clud­ing Wheaton Col­lege and a Cath­ol­ic or­gan­iz­a­tion called Little Sis­ters of the Poor, said their re­li­gious be­liefs were threatened when they filed the form with their in­sur­ance com­pan­ies. They ar­gued that be­cause they knew that fil­ing the form would ac­tiv­ate cov­er­age of a drug they find im­mor­al, they shouldn’t have to be­gin that pro­cess.

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