Under increasing legal and political pressure, the Obama administration issued a new rule Friday designed to ensure that female employees have access to birth control while accommodating religious employers that object to covering it through their health insurance plans.
But the latest attempt at a compromise — which comes in response to recent U.S. Supreme Court decisions — was quickly criticized by religious groups, including the Catonsville-based Little Sisters of the Poor, for not fully addressing their concerns.
Religious nonprofits and some companies would be permitted to register objections to the coverage requirement directly to the government. In those instances, federal officials would coordinate contraception coverage for those businesses.
"Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work," Health and Human Services Secretary Sylvia Burwell said in a statement. "Today's announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by non-profit organizations and closely held for-profit companies."
The new rule is the latest attempt to preserve a provision in President Barack Obama's landmark Affordable Care Act that required most businesses to offer birth control coverage to female workers at no cost. The Supreme Court ruled in June that some companies may refuse to offer that coverage.
But the effort Friday is unlikely to satisfy religious nonprofit leaders who have argued that simply notifying the government of their objection — and passing the responsibility to comply with the mandate off to another entity — makes them complicit in violating their religious beliefs.
"After three losses in the Supreme Court and dozens of losses in courts below, the government continues to confuse the issues," said Lori Windham, with the Becket Fund for Religious Liberty, which represents the Little Sisters in its own federal lawsuit on the issue. "The government issued over 70 pages of regulations, when all it needed to do was read the First Amendment."
Windham said the Becket Fund is reviewing the impact the change could have on the Little Sisters, whose case is pending before the 10th U.S. Circuit Court of Appeals.
The Little Sisters of the Poor, an order of Roman Catholic nuns, runs homes for the elderly and the poor around the country. The organization employs about 50 lay workers. In January, the group won a temporary reprieve from the requirement from the Supreme Court.
The federal rule appears to mark a significant change for closely held companies, such as Oklahoma City-based Hobby Lobby, the company at the center of the high-profile Supreme Court case this summer. Those firms, often family-owned, would now have clearer rules dictating how they could seek an exemption from the requirement.
But nonprofits such as the Little Sisters already had an exemption process in place under a prior regulation. Previously, those groups could formally register their opposition with their insurance companies, which would then step in to provide the coverage at no additional cost.
Wheaton College, a Christian liberal arts school in Illinois, rejected that procedure, arguing in federal court that it did not address its religious objections. The Supreme Court agreed and, in early July, granted the school a temporary exemption, which is what prompted the Obama administration's latest rule.
Under the new regulation, employers would notify the government of their objections instead of an insurance company. The government, in turn, would notify insurers and make certain that they provide the contraception coverage.
That shift, several religious groups say, does little to address their concerns.
"It is simply another clerical layer to an already existing accounting gimmick that does nothing to protect religious freedom because the employer still remains the legal gateway by which these drugs and services will be provided to their employees," said Arina Grossu with the Family Research Council, a conservative advocacy group.
William E. Lori, the archbishop of Baltimore, who has opposed the federal coverage mandate and lent his support to the Little Sisters, could not be reached for comment Friday. Archbishop Joseph E. Kurtz of Louisville, president of the United States Conference of Catholic Bishops, said in a statement he is disappointed with the rule.
"The proposed regulations would effectively reduce, rather than expand, the scope of religious freedom," he said.
But supporters of the coverage requirement say federal officials are bending over backward to address religious concerns, and they have called on Congress to strengthen the requirement. While some Democrats on Capitol Hill have pressed for that change, it is unlikely to gain traction in the current Congress.
"While the Obama administration is working hard to protect women's access to birth control in the face of harmful Supreme Court decisions, today's notice also serves as a stark reminder of what is at stake for women in this country when it comes to affordable basic health care," said Cecile Richards, president of Planned Parenthood Action Fund. "Congress needs to act to protect birth control access."
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