Analysis Law and Policy

Bishops’ Birth Control Benefit ‘Fix’ Not Actually Possible Under the Law

Jessica Mason Pieklo

Although the Obama administration has made numerous attempts to appease religiously affiliated nonprofits who object to providing contraception coverage in health-care plans, many of those nonprofits made it clear last week compromise is not possible.

Last week, attorneys for the United States Conference of Catholic Bishops (USCCB) filed a proposal with the Obama administration, which the bishops claim will end the hundreds of lawsuits challenging the Affordable Care Act (ACA)’s birth control benefit on religious grounds.

But one read of the proposal makes it clear that the only thing the bishops and the religiously affiliated nonprofits they represent are serious about ending is seamless health insurance coverage of contraception for those who depend on it—mostly students and low-wage workers.

The bishops filed the proposal in the wake of Zubik v. Burwell, the case challenging the birth control benefit accommodation process last summer. In that case, the U.S. Supreme Court ordered both the religiously affiliated objectors and the Obama administration to work out a compromise on the benefit instead of litigating it to death. To date, the administration has filed six requests for comment on how it can best accommodate institutions that claim a religious objection to complying with the ACA’s birth control benefit, without upending the ACA’s goal of providing affordable and comprehensive health insurance coverage for as many people as possible. But upending that comprehensive coverage is exactly what the bishops want to do, and last week’s letter to the administration makes that crystal clear.

First, the bishops take issue with the idea that the ACA was ever intended to provide comprehensive insurance coverage to begin with.

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“We begin with a discussion of the term ‘seamlessly,’” the bishops’ argument opens. “Now, for the first time [in this latest round of fights over the birth control benefit] the Administration suggests ‘seamless’ coverage might become a regulatory requirement.”

Suggesting such a thing in 2016—four years after the Obama administration notched its first Supreme Court win defending the comprehensive coverage goals of the ACA, in that case with regard to the individual mandate—is not just bold. It’s factually inaccurate.

“We do not believe that ‘seamlessness’ of contraceptive coverage is either a compelling governmental interest, or an indispensable means to pursue” a governmental interest, the bishops’ proposal continues. “Correspondingly, we believe the Administration should not impose it as a new regulatory requirement.”

The ACA has been in effect since 2010. There is nothing new about the birth control benefit, and suggesting otherwise is ridiculous—especially given the hundreds of lawsuits by both for-profit and nonprofit institutions challenging that benefit. The bishops know this. They endorse the litigation. Yet they open their proposal for common ground by simply regurgitating conservative political talking points on the ACA. And the administration is supposed to take this seriously?

Moving on. After taking issue with the very idea the ACA was ever intended to provide comprehensive health care, and claiming that efforts to do so have so far resulted in the widespread trammeling of corporate religious rights, the bishops graciously offer up to the Obama administration an olive branch: a compromise they insist will finally bring an “amicable end [to] an unprecedented and protracted dispute with the religious community.”

Without revealing too many spoilers, I’m going to say right now that the solution the bishops offer up isn’t actually a solution at all. And they almost certainly know this. First, though, let’s walk through what contraception coverage would look like in their world.

If the administration is going to require that contraceptive coverage be provided by the same insurance company with which the employer has its contraceptive-free plans, then the administration must make sure that coverage is “truly independent of petitioners and their plans.” That means a separate policy for contraception coverage, which would have its own separate enrollment process, its own separate insurance card, and its own separate source for coverage and premium payments.

“For this system to work, however, it must be the case that no further involvement of objecting employers is required,” the bishops’ letter reads. “In addition, to be truly separate and independent from the contraceptive-free plan, enrollment in the contraceptive-only policy must not be automatic.” Instead, the bishops say, these contraception-only plans must have an enrollment process that is “distinct from (and not an automatic consequence of) enrolling in the employer’s plan. Otherwise, it is not independent of the employer’s plan,” the bishops write.

So far, this “compromise” is not actually a guarantee of contraception coverage, because there is no automatic enrollment. It is also something that takes additional, affirmative steps to contact the insurance company by the employee or student who wants the coverage.

According to the bishops, these separate plans could take the form of either individual insurance policies or group health plans sponsored by the federal government. Regardless of the option, it would be up to the employees to enroll on their own.

Sounds seamless, huh? It gets worse.

That’s because the bishops don’t really want the contraception-only plan to be tied to employer health insurance plans. They want them completely separate, like vision or dental benefit plans often are now. “Indeed, it is routine—and not remotely difficult—for an employee currently to be enrolled in multiple plans, such as vision and dental, in addition to an employer’s main health plan,” the letter states.

“In short, there are ways to provide easy access to contraceptive coverage without requiring that the insurer be the same as the one that provides other coverages,” it concludes.

There are a few problems with this suggestion. First is the fact that contact lenses have virtually nothing in common with prescription birth control, other than the fact that, well, a prescription is involved. Second: Rarely, if ever, does segregating out health-care services for separate coverage guarantee that coverage is affordable. Ask any family struggling to fill eye-glasses prescriptions on a semi-regular basis. Third: Birth control is preventive medicine. Therefore, we shouldn’t even be having this discussion at all—because the law requires all insurance plans cover preventive care without additional co-pay or co-insurance.

And if treating contraception like contact lenses is too difficult, the bishops generously offer up another solution, which also violates the ACA: Let objectors’ employees and students just buy their own insurance on the Obamacare exchanges. “Employees of objecting employers who desire a health plan in which a single insurer provides both coverages could simply sign up for such a plan on the exchange,” the bishops write. “If the exchanges, which are at the heart of ACA, assure ease of access and affordability, as the government maintains, then the exchanges should present a viable option for individuals seeking health coverage and contraceptive coverage from the same insurer,” the bishops practically sneer here.

Never mind that potentially requiring employees to pay out-of-pocket on the exchange for coverage the law says they are entitled to amounts to gender-based discrimination in benefits.

And never mind that this proposal is, again, not actually possible under the ACA. During oral arguments for Zubik v. Burwell last March, then-Solicitor General Donald Verrilli told Chief Justice John Roberts and Paul Clement, the attorney representing the petitioners, that because contraception is specifically included in the ACA as part of the Women’s Health Amendment, to pull contraception out and offer it up as a rider, or a separate plan, would require Congress to amend the Women’s Health Amendment under the ACA.

The bishops know this, too, and they don’t seem to care.

“Whether or not this requires an Act of Congress to implement—and we take no position on that question—is irrelevant because RFRA requires that the government use the means least restrictive of religious liberty regardless of whether Congressional or other action is required to put such means into effect, a point made by the Chief Justice during oral argument in Zubik,” the letter states.

This is probably a good time to remind everyone the Women’s Health Amendment also guarantees health insurance coverage for breastfeeding support and supplies, domestic violence screening and counseling, HIV and sexually transmitted infection testing, and well-woman visits. The bishops, of course, “take no position” on whether or not the entire amendment would need to go in order to make their compromise work.

The administration has gone through this administrative process six times now, largely because conservatives will not stop filing legal challenges to each proposed accommodation. No matter the adjustment, conservatives have claimed each one is too great a burden on their religious liberties. “Fill out a form to avoid having to provide contraception coverage to your employees,” says the administration. “Too great a burden,” say conservatives. “Fine. Just tell us you object and who your insurance company is and we’ll do the rest,” the administration responds. “Too great a burden,” conservatives say again.

The administration has taken these conservative objections at face value—to a frustrating degree, in my opinion. It has done what it has the power to do: It both defends the law and engages the regulatory process over and over again to try and appease those purported religious objections. But let’s be clear. Appeasement is not possible. Compromise cannot happen. That’s because, as the bishops made clear in this latest letter, it is only when the ACA openly allows for health insurance plans to, once again, discriminate on the basis of sex and gender, will they end their challenges to the health-care reform law.

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