Under the proposed revision, secular opponents who have philosophical qualms with abortifacient drugs, even if they are explicitly pro-life organizations, could be forced to provide health care coverage for these services.
Although the rule would maintain the religious exemption, it would provide a new accommodation process by which employees of these exempt organizations could obtain the same contraceptive services for free, without forcing the employees to provide them.
The workaround would establish “individual contraception arrangements,” which would allow individuals who work for exempted organizations to receive contraceptives from a provider free of charge. The provider “would be able to seek reimbursement from an issuer with whom it has a signed agreement for the cost of providing contraceptive services to women covered under these plans,” according to an explanation published by the Biden administration in the Federal Register.
Because the employer would not be paying for the services, the government would subsidize the insurance provider by adjusting its federally-facilitated Exchange or State Exchange fee, which means that taxpayers would indirectly cover the costs.
Employers would not be required to take any action to grant their employees access to this service, nor would they need to adjust the health insurance plans they provide.
“This individual contraceptive arrangement would be available to the participant, beneficiary, or enrollee without the plan sponsor or issuer having to take any action that would facilitate the coverage to which it objects,” according to the administration. “Simply put, the action is undertaken by the individual, for the individual.”
What do the U.S. bishops say?
The United States Conference of Catholic Bishops opposes both rule changes: ending the moral objector exemption and establishing a new accommodation process.
“This mandate requires most employers’ health plans to cover contraception, sterilization, and some abortion-causing drugs for free for employees and their dependents,” the USCCB wrote concerning ending the moral exemption. “Pro-life groups are vulnerable to being forced to pay for these as well.”
The bishops have a significant concern with the new accommodation process as well.
“While some improvements that we’ve won in the past several years are likely to be kept in this new version (especially for religious organizations), it is still based on a harmful pro-contraception and anti-life philosophy that is bad for society,” the statement read. “Also, it leaves the door open to a so-called ‘accommodation’ process like the one the Little Sisters of the Poor fought against for so many years.”
(Story continues below)
Subscribe to our daily newsletter
What happens next?
HHS drafted a proposed rule, but nothing is final yet. The agency opened the proposal up for a public comment period of 60 days, which ended on Monday. The agency must now review those comments and consider the next steps.
The agency can reopen the proposed rule for further comments if it is not satisfied with the responses it has received and is allowed to consider comments submitted late but is under no legal obligation to do either. The agency is also not required to take the advice or the considerations provided through public comments if they do not want to.
If HHS does not reopen the proposal to further public comments, the agency will work with Biden and potentially with other agencies to submit a final rule change.
Ultimately, HHS has a lot of discretion about what it will do next. CNA reached out to HHS to ask how many public comments the agency received and what the next steps will be but did not receive answers to those questions by the time of publication.