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Public comments indicate few like Obamacare rule on birth control

A sampling of the public comments submitted on the Obama administration's latest proposal to mandate birth control at no cost through employer heath care plans indicates no one likes the accommodation for religious groups.
A sampling of the public comments submitted on the Obama administration's latest proposal to mandate birth control at no cost through employer heath care plans indicates no one likes the accommodation for religious groups.
Scott G. Winterton, Deseret News

A sampling of public comments submitted on the Obama administration's latest proposal to mandate birth control coverage indicates few, if any, groups like the accommodation for religious groups.

Churches and other faith-based organizations say the latest offer doesn't address their concerns that they will be required to provide their employees with contraceptive products and services that violate their religious beliefs.

Advocates for the free contraceptive coverage, on the other hand, argue that the accommodation goes too far in exempting religiously affiliated employers from providing a women's health benefit mandated under the Affordable Care Act.

Steering clear of the volatile issues of religious liberty and birth control, the Self-Insurance Institute of America dislikes the mandate for another reason altogether, saying the government's effort to put distance between religious groups and contraception coverage creates liability, high costs and conflicts of interest for third-party administrators of self-insured plans.

"SIIA believes the proposed regulatory framework where (third-party administrators) arrange for the separate contraception coverage ... is problematic and should be revisited," the group's comments stated.

These letters were among thousands submitted by the April 8 deadline that are to be considered before the Department of Health and Human Services issues its final rule Aug. 1. An exact total number of comments has been hard to come by since the latest round of submissions has yet to be posted. One report pegged the number at more than 85,000, and that was a day before the deadline.

"It's not unusual for no one to like a proposed administrative rule, particularly when rules either allocate a scarce resource or, in this case, draws a line that includes some and excludes others," said Robert Tuttle, a law professor at George Washington University. "There are going to be people who feel that the line should have been drawn in one place rather than the other for exactly opposite reasons."

Finding a solution to provide birth control coverage under Obamacare has proven problematic, sparking more than 50 lawsuits against the government from schools, hospitals, charities and businesses claiming the mandate violates their rights to practice their religious beliefs under the First Amendment and the federal Religious Freedom Restoration Act.

Hoping to resolve the impasse, the administration issued a new rule Feb. 1 that would slightly expand the exemption for religious organizations and allow other non-profit employers to use a third party to administer the contraception coverage for employees.

But the religious employers remain unsatisfied, saying the only solution is a complete exemption from providing coverage for something that violates the tenets of their faith.

"Under the accommodation ... religious organizations would still be forced to facilitate access to products and services that many of them believe to be deeply immoral, even though the obligation for procuring separate insurance policies covering these services would ostensibly fall on insurers or third-party administrators," stated comments submitted by the Becket Fund for Religious Liberty, which is representing eight clients in seven separate lawsuits over the mandate.

The United States Conference of Catholic Bishops, which has taken a leading role fighting the mandate, added that sterilization, contraception, and abortion-causing drugs like the "morning-after" pill are not preventative health care.

"Instead, they are associated with an increased risk of adverse health outcomes, including conditions that other 'preventive services' are designed to prevent," the conference's comments state. "The proposed regulation is therefore at odds with the purpose of the preventive services provision of the Affordable Care Act."

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."