WASHINGTON — The Department of Health and Human Services issued on Friday new rules regarding its contraception mandate, which address both nonprofits and closely held for-profit entities.

The new rules create a new way for nonprofit groups to voice their objections to the required coverage, prompting their insurance companies to offer the coverage free of charge. For closely held for-profit companies such as Hobby Lobby, the federal department said it is asking for ideas on how to extend the same accommodation offered to nonprofits.

HHS Secretary Sylvia Burwell said Aug. 22 that the new rules will ensure access to free contraception, “while respecting religious considerations raised by nonprofit organizations and closely held for-profit companies.”

The HHS department has issued a mandate under the 2010 Affordable Care Act, which requires employers to offer health insurance covering contraception, sterilization and some drugs that can cause early abortions.

It has been a particular burden for Catholics and others with pro-life religious and moral convictions. Non-compliance with the mandate is punished by severe fines.

While the mandate includes a narrow religious exemption for houses of worship, nonprofit organizations had been offered an “accommodation,” under which a religious employer would sign a form authorizing another company or third party to provide payments for the products they find objectionable.

The new rules announced Friday “are in response to recent court decisions,” the HHS stated.

 

Nonprofits and Closely Held For-Profits

For nonprofits, the newly issued rules “lay out an additional way for organizations eligible for an accommodation to provide notice of their religious objection to providing coverage for contraceptive services,” the Health and Human Services Department stated Aug. 22.

“The rule allows these eligible organizations to notify the Department of Health and Human Services in writing of their religious objection to providing contraception 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. The interim final rule solicits comments, but goes into effect upon publication.”

Regarding closely held for-profits, such as Hobby Lobby, the HHS said it is “issuing a proposed rule soliciting comments on how it might extend” to them “the same accommodation that is available to nonprofit religious organizations.”

“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.”

On June 30, the Supreme Court ruled that closely held for-profit corporations — such as Hobby Lobby and Conestoga Wood Services — are protected against the mandate by the 1993 Religious Freedom Restoration Act.

The two closely held businesses, run by Protestant and Mennonite owners, objected to aspects of the HHS rule that require them to provide coverage for drugs that they believe can cause abortions.

 

Lobbying Congress

The ruling quickly led to the introduction in the Senate of a bill aiming to thwart the Supreme Court’s decision, co-sponsored by Sen. Patty Murray, D-Wash., and Sen. Mark Udall, D-Colo.

The HHS department’s Aug. 22 release noted that the Obama administration “continues to encourage Congress to act to ensure that women affected by the Supreme Court’s Hobby Lobby decision have access to the same coverage options offered to others.”

At least 100 lawsuits filed by more than 300 plaintiffs have challenged the constitutionality of the HHS mandate. In the wake of the Hobby Lobby ruling, the closely held entity Mersino Management Co. won an injunction against the mandate from the 6th Circuit Appeals Court, and the Supreme Court granted a similar injunction to Wheaton College, a Protestant liberal arts college in Illinois.

One of the plantiffs is EWTN, the parent company of the Register and CNA.

Michael Warsaw, chairman and CEO of EWTN, said Friday, “Once again, we find ourselves extremely disappointed by the government’s latest attempt to modify the rules governing the HHS contraceptive services mandate."

"Instead of broadening the criteria for organizations that should be completely exempt from these rules, it appears that the government has simply changed the flow of paperwork and done little else," he added. 

"We will continue to analyze the latest rules with our legal team at the Becket Fund for Religious Liberty to determine their impact on EWTN’s challenge to the mandate, which is now pending before the 11th Circuit Court of Appeals.  We ask our EWTN family to continue to keep this matter in their prayers."