More Mandate Revisions: HHS issues new rules for opting out; diocese wins injunction

In new actions related to the federal contraceptive mandate, the Obama administration has announced rules allowing religious nonprofits and some companies to opt out of coverage they oppose on moral grounds, and the Diocese of Greensburg, Pennsylvania, has won a permanent injunction against enforcement of the mandate.

Greensburg Bishop Lawrence E. Brandt praised the U.S. District Court for the Western District of Pennsylvania for its ruling recognizing the "basic religious freedom" of the diocese and related entities.


"The injunction allows the diocese to continue our ministries to educate children and assist the many people in need in our communities without interference by government edicts that are contrary to our core beliefs," he said Aug. 21.

On Aug. 22, the Obama administration issued new rules it has described as a "work around" to offer religious employers who are not exempt from the mandate a new way to opt out. The rules also provide some for-profit companies a way to opt out.

After an initial review of a summary of the new regulations, Catholic and other religious leaders were critical of them, including the president of the U.S. bishops' conference, who said they "would not broaden the 'religious employer' exemption to encompass all employers with sincerely held religious objections to the mandate."

"Instead, the regulations would only modify the 'accommodation,' under which the mandate still applies and still requires provision of the objectionable coverage," said Archbishop Joseph E. Kurtz of Louisville, Kentucky.

The accommodation he described is a way for nonexempt, nonprofit employers to direct a third party to provide coverage they find morally objectionable.

As part of the Affordable Care Act, the U.S. Department of Health and Human Services requires nearly all employers to cover contraceptives, sterilizations and some abortion-inducing drugs for all employees in their company health plan. It includes a narrow exemption for some religious employers that fit certain criteria.

Employers who are not exempt must fill out a self-certification form -- known as EBSA Form 700 -- to direct a third party, usually the manager of an employer's health plan, to provide the contested coverage.

Many religious employers who have sued over the mandate argue that even filling out Form 700 makes them complicit in providing coverage they find objectionable.

In rules announced by HHS Aug. 22, the administration has made available a new course for nonprofits that object to the process for the accommodation and has proposed extending to certain for-profit companies the third-party accommodation previously created for nonprofits.

The new rules were designed in response to recent court rulings, including the Supreme Court's June 30 ruling in Burwell v. Hobby Lobby. It said that under the Religious Freedom Restoration Act, closely held companies may be exempted from the contraceptive coverage requirement as a religious right.

The HHS statement said the rules "balance our commitment to helping ensure women have continued access to coverage for preventative services important to their health, with the administration's goal of respecting religious beliefs."

Under the new rules, nonprofit organizations seeking to use the accommodation may simply "notify the Department of Health and Human Services in writing of their religious objection to providing contraceptive coverage. HHS and the Department of Labor will then notify insurers and third-party administrators so that enrollees in plans of such organizations receive separate coverage for contraceptive services, with no additional cost to the enrollee or the employer."

That portion takes effect immediately.

A proposal to handle companies covered by the Supreme Court ruling, such as Hobby Lobby, would allow closely held for-profit employers to follow the same accommodation that has previously been available to nonprofit religious organizations, the release said.

"Under the proposal, these companies would not have to contract, arrange, pay or refer for contraceptive coverage to which they object on religious grounds. The proposal seeks comment on how to define a closely held for-profit company and whether other steps might be appropriate to implement this policy," the release said.

Comments are being solicited on the proposal for closely held companies.

Archbishop Kurtz said that "by proposing to extend the 'accommodation' to the closely held for-profit employers that were wholly exempted by the Supreme Court's recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom."

He added: "We will study the regulations carefully and will provide more detailed comments at a later date. In keeping with our practice, we will evaluate the regulations according to the principles set forth in 'United for Religious Freedom,'" issued in March 2012.

In Greensburg, Bishop Brandt said the District Court recognized "that allowing the government to enforce the mandate would "cleave the Catholic Church into two parts: worship, service and 'good works,' thereby entangling the government in deciding what comprises 'religion.'"

"I realize this legal battle is not over," the bishop said. "The government has already indicated it will appeal this decision. ... I anticipate this issue will not be resolved until it is addressed by the U.S. Supreme Court."

"The Catholic Church is not trying to force its views on the rest of the country, and it is not attempting to overturn health care reform," he said. "I remain confident that our legal system will continue to protect the religious freedom and rights of the Catholic Church and other faith-based institutions that object to the provisions of the mandate."

He added, "Religious freedom is a fundamental right of all Americans. The right does not depend on government's decision to grant it: It is God-given and, therefore, inalienable."

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