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Protection of Conscience Project

Service, not Servitude
Legal Commentary

White House Promises for 2013


The Obama administration has decided that, as a matter of public policy, individual women should not have to pay for "FDA approved contraceptive services," which include surgical sterilization, contraceptives and embryocides.  The reasons offered for this policy are mainly economic and socio-political. 

Since sterilization and birth control have to be paid for by someone, the administration intends to force others to pay for them through insurance plans, even if they object to doing so for reasons of conscience or religion.

On 20 January, 2012, Kathleen Sebelius, Secretary of the Department of Health and Human Services, announced the final form of the regulation to be enacted for this purpose, and gave objecting institutions a year to comply with it

The announcement generated a revolt against the HHS mandate by religious institutions across the United States, protests from many other people and organizations (including 154 member of the U.S. House of Representatives), and the filing of two new civil suits against the US Federal Government.

Contrary to an administration statement  on 10 February, 2012, the regulation has not been changed to accommodate objecting religious believers.  The wording and legal effect of the regulation remains exactly as it was when it was announced on 20 January, 2012.3

In response, this statement from the White House was published on 10 February, 2012. It reaffirms the regulation and "grace period" announced by Sebelius and makes a number of promises about a new regulation that will not be in place until after US presidential election in 2012.

Key terms are highlighted, links have been added for the convenience of readers, and annotations are provided in text boxes to the right.

- Administrator

FACT SHEET: Women's Preventive Services and Religious Institutions [Original]
The White House
Office of the Press Secretary

For Immediate Release
February 10, 2012

As defined by the administration, contraception includes surgical sterilization, contraceptives, and embryocides. The economic emphasis is consistent with  reasons offered for this policy by the administration for the policy, which are mainly economic and socio-political.

Thanks to the Affordable Care Act, most health insurance plans will cover women's preventive services, including contraception, without charging a co-pay or deductible beginning in August, 2012. This new law will save money for millions of Americans and ensure Americans nationwide get the high-quality care they need to stay healthy.

If 99% of women have used contraception, access does not appear to be a problem.  The primary question for the administration is who should be made to pay for it.  In any case, the statistic has been shown to be inaccurate.

Today, President Obama will announce that his Administration will implement a policy that accommodates religious liberty while protecting the health of women. Today, nearly 99 percent of all women have used contraception at some point in their lives, but more than half of all women between the ages of 18-34 struggle to afford it.

The services are not free.  They are to be paid for by someone other than the women who use them.

The significance of his announcement depends primarily upon the meaning of the term "religious employer."

Under the new policy to be announced today, women will have free preventive care that includes contraceptive services no matter where she works. The policy also ensures that if a woman works for a religious employer with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide, pay for or refer for contraception coverage, but her insurance company will be required to directly offer her contraceptive care free of charge.

This means that objecting employers who are not non-profits will be required to pay for coverage or refer for it.

The new policy ensures women can get contraception without paying a co-pay and fully accomodates important concerns raised by religious groups by ensuring that objecting non-profit religious employers will not have to provide contraceptive coverage or refer women to organizations that provide contraception. Background on this policy is included below:

As defined by the administration, contraception includes surgical sterilization, contraceptives, and embryocides.

• Under Section 2713 of the Affordable Care Act, the Administration adopted new guidelines that will require most private health plans to cover preventive services for women without charging a co-pay starting on August 1, 2012. These preventive services include well women visits, domestic violence screening, and contraception, and all were recommended to the Secretary of Health and Human Services by the independent Institute of Medicine of the National Academy of Science.

• Today, the Obama Administration will publish final rules in the Federal Register that:

No change.  This is precisely the same rule and one year grace period announced by Secretary Sebelius on 20 January that many religious leaders have said they will not obey.

o Exempts churches, other houses of worship, and similar organizations from covering contraception on the basis of their religious objections.

o Establishes a one-year transition period for religious organizations while this policy is being implemented.

Moral or religious objections of others will not be considered.

There will be no new regulation until after the November 2012 presidential election.

• The President will also announce that his Administration will propose and finalize a new regulation during this transition year to address the religious objections of the non-exempted non-profit religious organizations. The new regulation will require insurance companies to cover contraception if the religious organization chooses not to. Under the policy:

Objecting religious believers will be forced to provide coverage, refer for the services, and subsidize the cost of surgical sterilization, contraceptives, and embryocides.

o Religious organizations will not have to provide contraceptive coverage or refer their employees to organizations that provide contraception.

o Religious organizations will not be required to subsidize the cost of contraception.

"Religious employers" is not defined.

o Contraception coverage will be offered to women by their employers' insurance companies directly, with no role for religious employers who oppose contraception.

It is not clear who will be required to pay for the coverage.

o Insurance companies will be required to provide contraception coverage to these women free of charge.

o The new policy does not affect existing state requirements concerning contraception coverage.

Covering contraception is cost neutral since it saves money by keeping women healthy and preventing spending on other health services. For example, there was no increase in premiums when contraception was added to the Federal Employees Health Benefit System and required of non-religious employers in Hawaii. One study found that covering contraception saved employees $97 per year, per employee.

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