So What’s the Deal with the New Contraception Mandate Rules?


Rending of garments has already begun in certain sectors of the blogosphere over the Obama administration’s proposed new rules regarding the contraception mandate (or, as I like to call it, the “birth control benefit.” “Mandate,” I think, feeds into wingnut teeth-gnashing about the Big Bad Government forcing them to do Shit They Don’t Like.)

Conservatives are alternatively gloating about how Obama is throwing women under the bus, and whinging that the new rules are still an affront to Jesus. Michelle Malkin and the other numbskulls at Twitchy published a post entitled: “Contraception mandate: Obama administration turns its back on the Sandra Fluke crowd.” The clowns at WorldNet Daily are claiming that Obama “blinked.”

Timothy Dolan, president of the United States Conference of Catholic Bishops is unsatisfied because of course he is: “In effect, the president is saying we have a year to figure out how to violate our consciences.” (The regulations, of course, do no such thing, as I have written again and again and again and again.)

So, for all you fact-lovers out there, here’s the deal, in short. The new proposed rules don’t change anything for women. At all. They don’t restrict contraception access, nor do they take away contraception access previously available.

The new rules simply expand the compromise the Obama Administration made with the Catholic Bishops and other religious muckity mucks in February of last year. (Think Progress has a nice little chart explaining the differences in the language.)

The new rules simply cover more “religious employers” than were covered before (employers like Catholic hospitals, charities, and schools), and exempt these religious employers from dirtying their hands in the contraception hand-off between insurance companies and women. Women who want to gobble up slut pills can still get them without co-pay — it’s just that they will get them directly from the insurer:

Under the proposed accommodations, the eligible organizations would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.

In addition, under the proposed accommodations, plan participants would receive contraceptive coverage through separate individual health insurance policies, without cost sharing or additional premiums. The issuer would work to ensure a seamless process for plan participants to receive contraceptive coverage.

The new rules also address self-insured organizations (like Tyndale Publishers):

With respect to self-insured group health plans, the eligible organization would notify the third party administrator, which in turn would automatically work with a health insurance issuer to provide separate, individual health insurance policies at no cost for participants. The costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay.

But what about students who attend religious schools like Notre Dame and Wheaton College? They’re covered, too:

The NPRM also proposes that an eligible religious non profit organization that is an institution of higher education that arranges for student health insurance coverage may avail itself of an accommodation comparable to that for an eligible organization that is an employer with an insured group health plan.

The bottom line is this: The new proposed rules do not restrict access to contraception, nor do they permit for-profit companies like Hobby Lobby and Newland Industries to avoid providing contraception coverage.

What the new rules do is render moot some of the nearly fifty birth control benefit lawsuits pending in courts around the country – Notre DameWheaton College, and Tyndale Publishers, to name a few.

Some have criticized the new rules. In a press release, Catholics for Choice president Jon O’Brien points out that the Obama Administration “did the right thing the wrong way”:

“Today the Obama Administration did the right thing the wrong way. According to the proposed rule, some women whose employers have a religious objection to providing contraception will still be able to get access through a third party provider.

“That’s the good news, but the proposed rule’s expansion of which employers can be exempted from providing comprehensive preventive healthcare, including contraception, is appalling. Women who work at Catholic schools, hospitals and social service agencies are wondering whether they’ll be able to get the same coverage as millions of other women, or if their healthcare just isn’t as important to the president as their bosses’ beliefs about sex and reproduction.

“It’s obvious that once again, the administration listened to the lobbyists for the Catholic bishops and their big business interests like Catholic healthcare, instead of Americans of every faith and of none who support the separation of religion and state and believe that public policy should not impose or privilege any religious viewpoint. Allowing such a wide exemption gives religious extremists carte blanche to trump the rights of others, based merely on the assertion of a belief about contraception even if that belief runs contrary to science or the widely-held convictions of co-religionists.

“While protecting contraceptive access under the ACA is a win for women, the administration’s caving in to lobbying from conservative religious pressure groups is a loss for everyone. American Catholics who support contraceptive coverage, who believe in the separation of church and state and who were hoping for change in Washington are disappointed today.”

I agree with that statement, and I don’t. From a practical standpoint, the Administration’s new rules allow the Obama Administration to fight the contraception battle on one front — against for-profit secular companies — while giving a pass to religious hospitals and schools. From a litigation standpoint, that’s not a small achievement. The new rules stem the litigation tide somewhat.

On the other hand, the Catholic lobby is never going to be satisfied (as evidenced by the fact that the Catholic Health Association was satisfied with the Obama Administration compromise in February 2012, and by June 2012, decided the compromise was an outrage), so perhaps President Obama should have just thrown up middle fingers at the Bishops and let the DOJ hash it out in court.

On the other other hand, the problem with the “middle finger” approach is this: Given the trajectory of the cases involving non-profit religious organizations (Notre Dame, Wheaton College, etc.), the government very well could have lost, resulting in bad legal outcomes in those “harder” cases that would effect the legal outcomes in the “easier” cases (Hobby LobbyO’BrienDomino’s Farms). Should Hobby Lobby be allowed to cry religious freedom? Absolutely not. Should religious schools like Notre Dame and Georgetown be so allowed? Eh. Maybe. I don’t think so, but I recognize that Notre Dame has a stronger argument than Hobby Lobby does.

From a litigation standpoint, therefore, it might be better to see how the RFRA and  Establishment Clause arguments will play out for secular companies; get a sense of how the courts are going to rule on such cases; then send a clean group of consolidated cases to SCOTUS, and see what happens.

All of this is to say that I’m on the fence, I guess: I understand why the Administration expanded the rules from a practical standpoint, but I also understand why activists like Sarah Posner of Religion Dispatches and Kaili Joy Gray of Daily Kos find the expansion problematic from a policy standpoint.

The one thing I’m not on the fence about, however, is this: Contraception has fuck-all to do with religious liberty. 


**The NPRM on women’s preventive services coverage is available here: http://www.ofr.gov/inspection.aspx.

**For more information on women’s preventive services coverage, visit: http://www.healthcare.gov/news/factsheets/2011/08/womensprevention08012011a.htm.

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