The National Catholic Review

In what will probably come as a shock to Catholic supporters of the Obama administration, Department of Health and Human Services Secretary Kathleen Sebelius announced today that H.H.S. apparently intends to stand by a controversial interim position on the wording of a religious exemption for employers regarding new health insurance plan guidelines. New requirements mean that employer-financed health plans must provide an array of contraceptive options to women without co-pay. The new regs currently include a narrow religious exemption that administrators at many Catholic institutions, including hospitals and universities, argue will mean they would be forced to stop providing health insurance for employees since to do so under the new requirements would violate Catholic teaching on sterilization, contraception and abortion. Instead of broadening the religious exemption as many hoped she would do, Sebelius merely extended a one year grace period for religious employers to comply with the new guidelines.

Sibelius said: "This decision was made after very careful consideration, including the important concerns some have raised about religious liberty. I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services. The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health care providers."

The decision is already being blasted by the U.S.C.C.B. The administration is on "the wrong side of the Constitution again," said N.Y. Archbishop and U.S.C.C.B. president Tim Dolan. "Never before has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience. This shouldn't happen in the land where the free exercise of religion ranks first in the Bill of Rights."

Sebelius's failure to broaden the exemption will surely prove an election year headache for the Obama administration as it adds powerful fuel to the fire for those alleging that the administration's policies and practices often trample religious liberty. Court challenges to the new regs are just about certain. A recent court decision giving religious liberty primacy over federal anti-discrimination laws means such a challenge will be favorably considered. In that case, the administration would be forced to retreat on the guidelines after antagonizing a crucial swing vote constituency. Clearly a lose-lose proposition in an election year.

Here is the full statement from Sebelius:

In August 2011, the Department of Health and Human Services issued an interim final rule that will require most health insurance plans to cover preventive services for women including recommended contraceptive services without charging a co-pay, co-insurance or a deductible. The rule allows certain non-profit religious employers that offer insurance to their employees the choice of whether or not to cover contraceptive services. Today the department is announcing that the final rule on preventive health services will ensure that women with health insurance coverage will have access to the full range of the Institute of Medicine’s recommended preventive services, including all FDA -approved forms of contraception. Women will not have to forego these services because of expensive co-pays or deductibles, or because an insurance plan doesn’t include contraceptive services. This rule is consistent with the laws in a majority of states which already require contraception coverage in health plans, and includes the exemption in the interim final rule allowing certain religious organizations not to provide contraception coverage. Beginning August 1, 2012, most new and renewed health plans will be required to cover these services without cost sharing for women across the country.

After evaluating comments, we have decided to add an additional element to the final rule. Nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law. Employers wishing to take advantage of the additional year must certify that they qualify for the delayed implementation. This additional year will allow these organizations more time and flexibility to adapt to this new rule. We intend to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support. We will continue to work closely with religious groups during this transitional period to discuss their concerns.

Scientists have abundant evidence that birth control has significant health benefits for women and their families, it is documented to significantly reduce health costs, and is the most commonly taken drug in America by young and middle-aged women. This rule will provide women with greater access to contraception by requiring coverage and by prohibiting cost sharing.

This decision was made after very careful consideration, including the important concerns some have raised about religious liberty. I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services. The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health care providers.