Changes to Health Insurance Contraceptive Mandate Unlikely to Appease Religious Groups

Experts say Obama administration changes were merely cosmetic.

The 1973 Supreme Court decision established the right to abortion.
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New rules issued Friday by the Obama administration concerning its controversial health insurance contraceptive coverage mandate, which prompted lawsuits from many religious organizations, are likely to do little to dissuade the litigation, experts say.

The healthcare mandate required all health insurance plans to provide women with free contraceptive coverage. Several lawsuits were filed against the Obama administration based on religious objections. In an attempt to mitigate the concerns, Health and Human Services Secretary Kathleen Sebelius offered up two alternatives for religious groups.

"With respect to insured plans, including student health plans, these religious organizations would provide notice to their insurer; the insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies," according to the press release.

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"With respect to self-insured plans, as well as student health plans, these religious organizations would provide notice to their third party administrator. In turn, the third party administrator would work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies." HHS also changed its definition of who counts as a "religious employer."

But those proposals mark merely cosmetic changes, according to Carl Esbeck, professor at the University of Missouri Law School who focuses on religious liberties.

"How many more organizations will be able to fit under the definition of religious employer now that it's broadened remains to be seen, but from a constitutional standpoint, that's good," he says. "The bad is nothing's changed. What these religious organizations object to, who are not exempt, and there will still be many, is that their securing of a health insurance plan and the payment of the premiums is what triggers, ultimately, the contraception coverage."

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Esbeck says the portions of lawsuits that took issue with the government determining who counts as a religious organizations will get dropped, but "the main trunk of the litigation will absolutely go forward."

"It looks like they changed something, but it didn't," he says. "None of them will go away."

The rules are still merely proposed changes, so they could be tweaked further. Sebelius pledged to continue to work with affected groups.

"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," she said in the release. "We will continue to work with faith-based organizations, women's organizations, insurers and others to achieve these goals."

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