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New Birth Control Coverage Rule Won't Satisfy Critics

The Obama administration just proposed a change to its birth control coverage rules presumably meant to placate contraceptive coverage opponents. It won't work.

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Protesters demonstrate against the contraceptive mandate, March 2012.
TIMOTHY A. CLARY / Getty Images

Protesters demonstrate against the contraceptive mandate, March 2012.

The department of Health and Human Services released a proposed change to its much-debated contraceptive coverage policy on Thursday, which would allow religious employers to offer insurance plans that don't cover contraception. Employees would then be automatically enrolled in a separate third-party policy that would cover birth control at no cost.

This new compromise replaces one from last February, in which employers would have to include contraceptive coverage in their plans but would not actually pay for such coverage. That didn't satisfy opponents of the birth control coverage mandate, and this new plan is unlikely to do so either.

"Today's proposed rule does nothing to protect the religious liberty of millions of Americans," said Kyle Duncan of the Becket Fund for Religious Liberty, which has helped a variety of employers bring suit against the mandate, in a statement. The Becket Fund and others object to the new rule because it would only cover groups designated by the HHS as religious employers (such as churches and religious schools), and not private companies that do not wish to provide contraceptive coverage. "The rights of family businesses like Hobby Lobby are still being violated," Duncan wrote.

And Marjorie Dannenfelser of the Susan B. Anthony List said in a statement to the Washington Post, "There must be no religious 'test' by the government as to who, and what type of entities, are entitled to a conscience. We demand respect for non-religious entities such as the Susan B. Anthony List that recognize the taking of human life is the antithesis of health care."

Longtime supporters of the contraceptive mandate supported the new proposition. Ilyse Hogue, the new president of NARAL Pro-Choice America, said in a statement, "Today's draft regulation affirms yet again the Obama administration's commitment to fulfilling the full promise of its historic contraception policy." The National Women's Law Center also released a statement in favor of the proposal.

The new compromise will now enter a 60-day comment period. The Becket Fund's many lawsuits on behalf of for-profit and nonprofit employers are ongoing — of the 14 for-profit companies that have brought suits, which wouldn't be affected by the new rule, 10 have received injunctions allowing them to refrain from contraceptive coverage for now.

Update: Catholic Association Board Member Leonard Leo says the new proposal doesn't benefit Catholic employers either, and may in fact be worse for them than the February compromise. Previously, charities included in an exempt Catholic diocese's insurance plan were also exempt from the mandate, but "the new proposal seems to take that away." And he says the new plan could require Catholic employers to make sure a third-party insurer exists to provide the contraceptive coverage they aren't providing: "You are putting that objecting charity right in the middle of having to arrange free contraceptive services for its employees, even though it is not paying for them itself. That is a distinction without a difference."