HHS Issues Statement Confirming Outlines of Contraception Mandate 'Accommodation'

Catholic universities will also be subject to policy that attempts to shift costs for contraception services to insurance companies, though critics call this an ‘accounting trick.’

Health and Human Services Secretary Kathleen Sebelius testifies during a Senate Appropriations Committee hearing on Capitol Hill March 6.
Health and Human Services Secretary Kathleen Sebelius testifies during a Senate Appropriations Committee hearing on Capitol Hill March 6. (photo: Mark Wilson/Getty Images)

WASHINGTON — Today, the Obama administration released an “Advance Notice of Proposed Rulemaking on Preventive-Services Policy,” a statement that appeared to adhere to the outlines of President Obama’s Feb. 10 “accommodation.”

A new “comment” period was also announced, as it was after the Aug. 1 announcement of the interim final rule on the contraception mandate. Last fall, hundreds of thousands registered their opposition to the narrow exemption offered in the mandate to church-affiliated institutions, but the same language was ultimately approved on Jan. 20 by Kathleen Sebelius, the secretary of the Department of Health and Human Services.

UPDATE: The Cardinal Newman Society greeted the latest HHS announcement with dismay, noting that it did “nothing to relieve Catholic colleges from the administration’s violation of religious liberty,” arising from the contraception mandate, which will require church-affiliated universities to provide contraceptives in employee health plans. Student health plans also will be required to provide these services.

The mission of the Cardinal Newman Society is to promote and strengthen the religious identity of Catholic colleges and universities. In its response to the HHS announcement, the group’s statement noted that the federal agency “had not issued any new rule, or made any new compromise to protect Catholic colleges.  Its latest announcement (to be published in the Federal Register on March 21st) simply launches a 90-day comment period on the mandated insurance coverage for sterilization, contraception and abortifacients.”

“If the Obama administration did not get the message by now, then there is minimal hope for a resolution that does not come from the courts, Congress or a future President.  By the time this new, 90-day comment period ends, it will have been nearly 11 months since the Obama administration’s insulting and dangerous “religious exemption” was first announced, yet the exemption remains in substantially the same form,” read the statement from the Cardinal Newman Society.

Today’s announcement from HHS stated that under “a final rule governing student health plans. ... students will gain the same consumer protections other people with individual market insurance have, like a prohibition on lifetime limits and coverage of preventive services without cost sharing. In the same way that religious colleges and universities will not have to pay, arrange or refer for contraceptive coverage for their employees, they will not have to do so for their students, who will get such coverage directly and separately from their insurer.”

The U.S. Conference of Catholic Bishops had no formal response, though it will not welcome another announcement that fails to address its central objection to a contraception mandate that requires church-affiliated institutions to provide morally objectionable services in their employee health plans.

A terse statement from Sister Mary Ann Walsh, the conference spokeswoman, reflected Church leaders’ growing impatience with the administration’s handling of the controversy.

“I am surprised that such important information would be announced late Friday of St. Patrick’s Day Weekend and as we prepare for the Fourth Sunday of Lent,” said Sister Mary Ann.

“The bishops will begin analyzing it immediately, but now is too soon to know what it actually says. The bishops will consider how the proposal gels with the principles outlined in ‘United for Religious Liberty,’ the statement that the USCCB Administrative Committee issued March 14.”

The administration has issued a number of statements related to the HHS contraception mandate on Friday afternoons, including the Jan. 20 approval of the final rule on the mandate and the Feb. 10 “accommodation.” Friday afternoon press releases are a time-honored communications strategy for burying a controversial decisions. 

The Becket Fund for Religious Liberty’s senior counsel Hannah Smith also questioned the timing of the latest HHS statement, but for a different reason. The administration has sought to dismiss the cases filed by the Becket Fund, a public interest group, arguing that the specifics of the “accommodation” will soon be worked out, thus eliminating the basis for the legal challenge.

“The timing of this announcement is also suspect. The administration knew that the Becket Fund’s response to the government’s motion to dismiss will be filed in federal court on Monday. This delay tactic is designed to disrupt those arguments because the administration knows it won’t be able to answer them,” Smith said.

“We do not need any more rule making. We do not need any more comment periods. We already settled this with that one original rule: the First Amendment,” said Smith in a statement released this afternoon.

The Becket Fund is representing a number of legal challenges to the contraception mandate. The Eternal World Television Network (EWTN) is among those represented by the Becket Fund.

The Register is a service of EWTN.

“The administration’s action is just another delay tactic,” said Smith. “It’s not that complicated. Grant a wide enough exemption to honor the conscience of millions of Americans. The First Amendment demands it.”

Applauded by Planned Parenthood

The new HHS statement was greeted with equal impatience by National Review‘s Kathryn Lopez, who has been closely monitoring the developing story and described the latest move by the administration as “a thinly veiled attempt to punt the entire issue into 2013, thus allowing the president to continue his doublespeak on the issue — pretending that he is interested in protecting religious liberty with pronouncements about a forthcoming concession while the policies he actually implements go in exactly the opposite direction.”

To no one’s surprise, Planned Parenthood Federation of America’s president, Cecile Richards, applauded the HHS statement.

“For many women, especially college students, birth control is not only a health-care issue; it is a financial issue. Covering birth control with no co-pays means college students will not have to choose between paying for tuition and books or paying for basic health care like birth control,” said Richards in a statement.

The new phase of rule making does nothing to address the objections of the U.S. bishops.

Cardinal Timothy Dolan, president of the bishops’ conference, has already dismissed the “accommodation” as unacceptable. While the president argued that his accommodation shifted payment for contraception services to insurance companies, church leaders say religious employers will still pay for these services through insurance premiums. Further, many Catholic institutions are self-insured and thus would pay directly for these services. The rules dealing with self-insured plans will not be spelled out until after the election, though today’s HHS announcement proposed that various independent entities would absorb these costs.

Most recently, the USCCB Administrative Committee issued a March 14 statement affirming plans to pursue legislative and legal remedies while remaining open to further opportunities for dialogue with the White House. The committee’s statement also announced the release of an upcoming statement on religious liberty.

But White House spokesman Jay Carney has rejected calls for further “dialogue” between Church leaders and the Obama administration on the HHS contraception mandate.

“The solution that was reached here … has been reached, and we firmly believe that it achieves the goals that the president set,” Carney said at Thursday’s White House press conference.

While the administration’s response to the U.S. bishops’ objections has primarily focused on shifting the cost of contraceptives to other entities—insurance or pharmaceutical companies, for example, the HHS mandate also covers co-pay free sterilizations, an expensive surgical procedure that can cost over a $1,000. No explanation has been offered for how this cost could be shifted from religious employees to other entities—or how the law would conform to this unprecedented federal policy.

The official HHS statement posted this afternoon outlined the “next step in the Obama administration’s effort to ensure women access to recommended preventive services while respecting religious liberty,” said an HHS press release issued today.

“This policy will provide women with access to recommended preventive services, including contraceptives, without cost sharing, while ensuring that nonprofit religious organizations are not forced to pay for, provide or facilitate the provision of any contraceptive service they object to on religious grounds. The Advance Notice of Proposed Rulemaking issued today gives all Americans the chance to formally comment on ideas for implementing this policy.”

“The president’s policy respects religious liberty and makes free preventive services available to women,” said the press release. “Today’s announcement is the next step toward fulfilling that commitment.” The Federal Register advance notice on women’s preventive services calls for a “90-day public comment period. The departments will also hold listening sessions.”

The HHS has announced that it will release rule making on college student health plans next week, but the statement made it clear that health plans at Catholic colleges will be covered by the accommodation. Critics of the president’s “accommodation,” including the U.S. bishops, have argued that it is nothing more than an accounting gimmick.

Register senior editor Joan Frawley Desmond writes from Chevy Chase, Maryland.