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The National Catholic Bioethics Center
Coverage of Immoral Procedures under the Affordable Care Act
© 2019 by The National Catholic Bioethics Center
Coverage of Immoral Procedures under the Affordable Care Act
July 14, 2015
The US Department of Health and Human Services, on July 10, 2015, issued Final “Rules” mandating that virtually all employers provide in their employee benefit packages coverage of certain so-called preventive services for women, including contraceptive and abortifacient drugs and devices (“Contraceptive Mandate”). The “Rules” do not provide for any new exemption to the Contraceptive Mandate. They expand the definition of “eligible organization” so that “closely held” for-profit organizations with a religious objection now qualify for the “accommodation,” which was previously limited to religious non-profit organizations. They also provide for an “alternative” method for eligible organizations to report their objections and insurance plan information, which still implicates the employer in the mechanism by which its employees receive the objectionable coverage. The Administration continues to propose an unjust and unlawful mandate with only an arbitrarily narrow exemption for houses of worship, with no exemption at all for most individuals, employers and organizations, and an “accommodation” that still requires employers that fall outside the narrow government definition of “religious employer” to facilitate the objectionable coverage.
The “Rules” modify the eligibility for the existing “accommodation,” originally designed for religious ministries such as Catholic charities and hospitals, which are referred to as “eligible organizations.” Thus, “closely held” family businesses with a religious objection to such a mandate will be eligible for the same “accommodation” as a not-for-profit religiously sponsored organization. A “closely held” business is a for-profit entity that is not publicly traded, is majority-owned by a relatively small number of individuals, and objects to providing such coverage based on the owners’ religious beliefs.
However, the case of the Little Sisters of the Poor, who had received a temporary injunction by the US Supreme Court from having to comply with such an “accommodation,” has demonstrated that such an “accommodation” does nothing to correct the violations of religious liberty imposed by the Contraceptive Mandate. This mandate as presented in the “Rules” continues to substantially burden the religious liberty of all persons with religious objections to the mandated coverage. In fact, within days of the promulgation of these new “Rules,” a three-judge panel of the 10th US Circuit Court of Appeals denied an injunction to the Little Sisters, after the US Supreme Court had temporarily granted such an injunction until the 10th Circuit Court could hear the case.
These “Rules” do not change the purpose or effect of the EBSA Form 700, the self-certification form for “accommodated” employers. As under the previous regulation, employers with a religious objection to contraceptive coverage remain subject to the Contraceptive Mandate, but are deemed to be in compliance with it if they provide their insurer or their Third Party Administrator (“TPA”) with a completed Form 700. Receipt of the form by the insurer (or, in the case of a self-insured plan, TPA) authorizes and/or obliges it to provide or arrange payments for abortifacients/contraceptives to persons enrolled in the plan.
These new “Rules” finalize an alternative mechanism that had been temporarily allowed for "eligible organizations" under the Interim Final Rules, permitting them to submit directly to HHS some other notification in writing that accomplishes the same end as Form 700. The “Rules” state that the “eligible organization” may notify the government in writing of the organization’s objection with accompanying information that ensures that the very coverage to which the employer objects is extended to its own employees. The government (HHS for contracted plans, and the DOL for self-insured plans) will then contact the organization’s insurance provider or TPA to assure the same coverage is provided to employees. Thus, an “eligible organization” is still required to facilitate payments and coverage for the contraceptives to which it objects. The “accommodated” organization’s own plan becomes a mechanism which ensures that contraceptives are made available to enrollees, preventing the organization from maintaining a plan consonant with its religious or moral beliefs.
More specifically, the basis on which an “eligible organization” qualifies for an “accommodation” involves the organization in cooperating in a program that facilitates the violation of its own religious tenets. The organization must indicate in writing to the federal government: that its objections are based on sincerely-held religious beliefs; their insurance plan name and type; the name and contact information of the religious organization’s insurer and/or TPA; and any change or update in the requisite information. Upon receipt of this information and based upon it, the government will contact the organization’s insurer or TPA to inform it of its obligation to provide coverage and arrange payments for contraceptives to plan enrollees. This facilitates employee access to objectionable coverage in direct contravention of the organization’s sincerely-held religious beliefs. Like the submission of Form 700 to the insurer or TPA, the submission of the “eligible organization’s” alternative notice directly to HHS supplies the insurer or TPA—via the government and its requirements—with all it needs to provide or arrange for the coverage to which that employer objects. It is the employer’s own health plan that remains the conduit for coverage for contraceptives. Enrollees obtain this coverage precisely because they are enrolled in the plan. The plan itself continues to operate as a “trigger” for contraceptive coverage, and plan premiums appear likely to serve as the funding source for the objectionable “services.”
Furthermore, the “Rules” retain a regulatory scheme in which “preventive” health services are defined to include items that do not prevent disease, but rather are intended to render a woman temporarily or permanently infertile, and may be associated with adverse health outcomes. Designating contraceptives as “preventive services” does not constitute good clinical medicine. An extensive body of evidence shows hormonal contraceptives pose substantial threats to women, including myocardial infarction, cerebrovascular accidents, deep venous thrombosis, pulmonary emboli, as well as breast cancer, cervical cancer, and liver cancer. The relationship between hormonal contraception use and breast cancer—and in particular the disturbing connection between oral contraception use and triple-negative breast cancer (for which oral contraceptives raise the risk by 2.5 to 4.2 times)—should cause caution and concern. Furthermore, it is a scientific fact that contraceptive drugs and devices also are associated with an increased risk of AIDS and sexually transmitted diseases. Designating contraceptives as “preventive services” gives the false impression that these are safe and standard medications. Thus, such contraceptives are not “preventive services,” but put the very women they are purported to protect at significant health risk.
In the end, the objecting employer is prevented from offering its employees a plan that comports with its religious convictions. It is evident that suppression of religious freedom can take at least two forms. It can take the form of making conscientious objectors actively cooperate with what they see as morally forbidden. But it can also take the form of depriving those objectors of the right (a right that others continue to exercise) to do what they see as morally required. Objecting employers will lose that right, because any plan they offer will be turned into a conduit for the objectionable coverage.
Finally, the practical outcome for employees and their children is exactly the same: the objectionable coverage is obtained by virtue of their enrollment in the employer-provided health plan. Employees who share the objecting organization’s religious tenets are similarly deprived of the freedom to choose an insurance plan organized according to their own values, and are forced to accept coverage for their families to which they have their own religious or moral objection. In this way, the “Contraceptive Mandate” completely fails to acknowledge the religious freedom of both individual and institutional conscientious objectors. Because it is not narrowly tailored to accomplish a compelling government interest, the Contraceptive Mandate violates RFRA, as most courts addressing the issue have either held or found likely in granting some form of injunctive relief.