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HHS proposed rule further modifies contraceptive coverage provision

For the third time since it first introduced its plans to require women's preventive health services including coverage for contraception under employer-sponsored health plans, the Department of Health and Human Services on Friday announced a modified set of proposed rules aimed at allaying the objections of religious organizations to the mandate.

Under the most recent proposed ruled issued last week, nonprofit religious organizations objecting to the mandate can inform their insurer they will not pay for the contraceptive services. Under these circumstances, the insurer would then pick up the cost of providing coverage for that organization's employees.

With regard to self-insured employers, they would be required to alert their third-party administrator, who would then be responsible for arranging no-cost contraceptive coverage through an insurer.

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"Today, the administration is taking the next step in providing women across the nation with coverage of recommended preventive care at no cost, while respecting religious concerns," said HHS Secretary Kathleen Sebelius, in a press release announcing the proposed rule modification. "We will continue to work with faith-based organizations, women's organizations, insurers and others to achieve these goals."

The latest modification comes as religious organizations continue to strongly oppose the mandate on the grounds that it violates their religious freedom. While the administration has already taken steps to exempt certain religious organizations, mainly churches and other houses of worship, advocates for nonprofit religious organizations including hospitals, colleges and others feel the exemptions don't go far enough.

Further, religious rights groups assert the proposed rule does nothing to take into account for-profit companies whose owners may object to paying for contraception and sterilization services based on their own religious beliefs. Since the rule was announced in late 2011 there have been dozens of lawsuits filed by for-profit companies challenging the constitutionality of the law on these grounds.

"Today's proposed rule does nothing to protect the religious freedom of millions of Americans," said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty in a statement issued in response to the proposed rule. "The administration obviously realizes that the HHS mandate puts constitutional rights at risk. There would have been an easy way to resolve this – expanding the exemption – but the proposed rule expressly rejects that option."

While challenges to the mandate continue to pile up on religious grounds, there is also strong support for the policy by those who see this not as a religious issue but rather an issue of women's rights, and are supportive of the mandate.

"This policy delivers on the promise of women having access to birth control without co-pays no matter where they work," said Cecile Richards, president of Planned Parenthood Federation of America in a posting on its website in support of the proposed rule. "Birth control is a basic and essential component of women's preventive health care. Women have been fighting for access to birth control for decades, and this is a historic advance for both health care and equality."

There are indications that the administration has the support of not only the majority of Americans in this regard, but also among the majority of American Catholics, despite the objections of the United States Conference of Catholic Bishops.

An April 2011 report from the public policy research organization the Guttmacher Institute showed that 98 percent of Catholic American women had used birth control at some time in their lives, despite the church's ban on the practice. Further, an October 2012 public opinion survey on contraception and unplanned pregnancy by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 70 percent of respondents believed contraception coverage should be provided by insurers, the same as it is with other preventive services.