Among the most controversial requirements of health care reform is a preventive care provision that requires all insurers and nongrandfathered health plan sponsors to cover contraceptives without a deductible or copayment. Coverage includes all FDA-approved contraception methods, sterilization procedures, and patient education and counseling.
The provision is effective for plan years beginning on or after Aug. 1.
Religious organizations have been up in arms. The mandate provides an impossibly narrow exemption for religious organizations that offer health coverage to their employees. To be exempt, an organization must be nonprofit, have religious values as its purpose, primarily employ people who share its religious beliefs and primarily serve people who share its religious beliefs.
Last August, the United States Conference of Catholic Bishops Services stated that "although the mandate does not expressly target Catholicism, it does so implicitly by imposing burdens on conscience that are well-known to fall almost entirely on observant Catholics - whether employees, employers or insurers." The bishops maintain that the mandate is an unprecedented and unconstitutional interference with the ability of the Catholic Church to govern itself and its institutions.
On Jan. 20, the Department of Health and Human Services issued a press release delaying the implementation date to Aug. 1, 2013, for certain nonprofit employers for whom such a mandate is contrary to religious beliefs. But this delay did not relieve these organizations of the requirement to offer birth control coverage to their employees.
On Feb. 10, in an effort to quell the furor, President Obama announced that insurers, not religious organizations, would cover the costs of birth control. But the requirement that health insurers cover the cost of birth control is smoke and mirrors for religious organizations that offer insured plans and unworkable for those that self-insure. It indicates that the government isn't backing down from requiring coverage regardless of religious beliefs.
Proponents argue that the nearly all women use contraceptives at some point in their lives and that the contraception should be part of a comprehensive preventive health program for women. But the mandate forces religious organizations to pay, either directly or indirectly, for something that violates the basic tenets of their faith. Even for a person without religious affiliation, the requirement to cover contraceptives is a slippery slope. If it survives constitutional challenges and the measures aimed at repealing the mandate, can we expect our constitutional rights to be trampled when the few decide for the many?
Opponents - religious leaders of various faiths and denominations, not just Catholic bishops - have expressed deep concern that the contraceptive mandate compromises principles. The final rules published in the Federal Register on Feb. 13 state that the temporary enforcement safe-harbor period allows opportunity "to develop and propose changes to these final regulations that would meet two goals - providing contraceptive coverage without cost sharing to individuals who want it, and accommodating nonexempt, nonprofit organizations' religious objections."
This is mission impossible. There is simply no way to overcome religious objections. The contraceptive mandate forces an unthinkable compromise. Unless the exemption is made broader, religious organizations will be forced to pay hefty penalties or drop health coverage for their employees.
The contraceptive mandate has become a political hot potato and leaves me wondering if we aren't seeing the forest for the trees. Perhaps this mandate has a lot more to do with laying the groundwork for universal health care than it does with promoting women's health care. Maybe the goal of the mandate is to surreptitiously control population growth so that universal health care is attainable in a few decades. Maybe it's one more back-door entry to universal health care, like the 2014 individual mandate and the 2018 employer Cadillac tax.
Whatever the real reason behind this mandate, no good can come of the government pitting health care against religion. As Cardinal Timothy Dolan said, "You can't compromise on principle." If broader exemptions from the mandate aren't made available, the perception will be that government opposes freedom of religion. Will the delegation of authority present in the Patient Protection ad Affordable Care Act bring about other equally impossible obligations? Could a limit on children like China's one-child policy be next?
Contributing Editor Leanne Fosbre is a senior summary plan description writer with HighRoads, an HR IT consulting company headquartered in Woburn, Mass. She partners with clients' vendors and legal counsel to create accurate, user-friendly and current summary plan documents. Leanne is a certified employee benefits specialist and can be reached at email@example.com.
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