Stung by recent losses at the U.S. Supreme Court, the Obama administration moved Friday to quell continued religious and legal objections by some employers to the Affordable Care Act's mandate that their health plans offer birth control, while at the same time maintaining their workers' access to contraception at no additional cost.
Significantly, the administration is now proposing, for the first time, to allow certain for-profit companies that are not publicly traded the ability to avoid the mandate if they object to it on religious grounds. The public can comment on that proposal, and what form it will take.
And a new rule issued Friday by the administration will make it even easier than it already is for nonprofit religious organizations that object to paying for contraceptive services through their health plans to opt out.
Religious nonprofits already had the ability to opt out of the mandate, but had been required to file a self-certification form with their insurer. Nonprofits now will not be required to do that—some had argued that doing so would make them complicit in having the insurer then foot the bill for birth control for their workers.
That's because under the existing rules for nonprofits, employees will still receive birth control medication and devices at no additional cost, through a government-contrived workaround that will require insurance companies to foot the bill, at least temporarily. That same workaround is called for in the proposed accommodations for for-profit companies that object to the contraception mandate on religious grounds.
While Friday's announcement may satisfy some such employers, others are likely to continue ongoing court challenges to the contraception mandate on the grounds that any impact from it on their health insurance plans violates their religious rights, according to several lawyers, including one involved in an ongoing case.
"The litigation, I think, will decease. It won't end," said Kent Greenfield, a Boston College law professor who has closely followed the issue.
It is not clear how many companies will avail themselves of the opt-out accommodations to the Obamacare mandate, which normally requires employer-based insurance plans to cover birth control at no additional out-of-pocket cost to workers, such as in the form of copayments for medication.