Two Strikes and Contraception is Out0

On February 1, 2013, the Federal Government issued proposed rules that may finally end the contraception controversy and its challenge to the Affordable Care Act’s commitment to preventative services, including addressing requirements relating to all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive ability.

The proposed rules lower the bar for employers engaged in secular and religious purposes, as well as those religious employers who hire outside the fold. The latest version acquiesces to eligible organizations opposed to contraceptive coverage, finally offering absolution from the requirements of Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act and Section 9815(a)(1) of the Internal Revenue Code.  In essence, the proposed rules let these employers practice what they preach.

When first announced in August 2011, the inclusion of contraceptive care as a mandatory component in the employer promotion of preventative services sparked a First Amendment inferno that many thought threatened the Affordable Care Act as well as a number of additional federal and state laws.  Others disagreed that contraceptive care was sacrosanct, either on its own or as part of health care reform. Nevertheless, the Federal Government partially recanted this requirement by delaying its implementation for certain entities by an additional year. It then offered regulations in February 2012 as a compromise, keeping contraceptive care in the gamut of preventative services, but creating a temporary enforcement safe harbor for objecting employers.  In doing so, this tithe provided the Federal Government with some time to sort things out, and as the case appears, repent.

Some 200,000 comments later, the preventative services coverage rules set forth in 26 C.F.R. § 54.9815, 29 C.F.R. § 2590.715-2713 and 45 C.F.R. § 147.130 lower the burden so employers can sidestep certain separations between church and state.  Specifically, employers who seek sanctuary under the proposed rules must:  (1) oppose providing coverage for some or all of the previously required contraceptive services on the basis of religious grounds; (2) exist as a nonprofit entity; and (3) represent themselves as a religious entity, all of which must be established through self certification.

The most recent concession on the issue, however, did not end the controversy nor win support with Roman Catholic leadership. While the regulations protect certain employers from shouldering the cost directly for contraceptive coverage, critics contend there is no clear understanding how the expense will be reallocated. Notwithstanding, employee coverage for contraceptive care still remains in tact, but insurance companies must absort the cost for those employers who qualify under the proposed regulations.  While this exemption only applies to the contraceptive coverage requirements under the ACA, states remain free to pass greater protections, including additional access to contraceptive coverage.

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