Insurance Companies Still Required to Provide Abortifacients

Brittany M. Hughes | August 5, 2014 | 4:44am EDT
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Demonstrators react to the Supreme Court's decision in the Hobby Lobby case outside the Supreme Court on June 30, 2014. (Pablo Martinez Monsivais/AP Photo)

( - While advocates of religious freedom and the sanctity of life have hailed last month’s Hobby Lobby decision in the U.S. Supreme Court, the ruling did not liberate health insurance companies from being required to provide coverage for abortifacient drugs in their plans.

The Supreme Court ruled that Hobby Lobby, which is a Christian family-owned company, could not be required to provide cost-free coverage for two types of IUDs and two abortifacient drugs because the owners believed doing so violated their religious beliefs.

The court found that for the government to apply Obamacare’s “preventive services” regulation to Hobby Lobby violated the Religious Freedom Restoration Act (RFRA).

That act prohibits the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability, unless the government ‘demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’”

In Hobby Lobby, the Court ruled that the regulation requiring the company to cover the abortifacient IUDs and drugs in its health care plan was not the “least restrictive means” the government could use to achieve its interest in distributing contraceptives.

According to the court’s decision, the Department of Health and Human Services could simply treat for-profit companies that object to providing abortifacients the way it treats non-profit organizations that have a religious objection to providing coverage for abortifacients, contraceptives or sterilizations.

Under that regulation, when a non-profit signs a form saying it objects to the mandate, its insurance provider (or, if it is self-insured, its third party administrator) is then required to provide the mandated coverage itself.

But changing the regulation to treat for-profit employers, like Hobby Lobby, the same as non-profits does not lift the coverage mandate off of insurance providers. They would still be on the hook to provide these services and absorb the cost.

In other words, while the federal government can no longer mandate what certain companies have to buy, they can still regulate what insurance companies have to provide.

The Patient Protection and Affordable Care Act, or Obamacare, says: “A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for …with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”

The regulation issued by the Health Resources and Services Administration required coverage for all FDA-approved contraceptives, including the abortifacients, the IUDs, and sterilizations.

“Non-grandfathered plans (plans or policies created or sold after March 23, 2010, or older plans or policies that have been changed in certain ways since that date) generally are required to provide coverage without cost sharing consistent with these guidelines in the first plan year (in the individual market, policy year) that begins on or after August 1, 2012,” the HRSA requirement states.

Adele Keim, a counselor with Becket Fund for Religious Liberty, said the administration has announced it will issue new regulations to address the court’s Hobby Lobby decision, but it remains to be seen what those regulations will look like.

“They’ve said they will issue new regulations, and I would expect them to include the creation of a category to treat these for-profits the way they treat religious employers or religious non-profits,” Keim explained. “But I can’t promise that, because no one knows at this point. We’re just waiting to see what those new regulations will look like.”

Keim added while she fully expects the federal government to create a new regulatory category for exempt for-profits, in which an insurance company can offer them a plan that excludes coverage for objectionable contraceptives, the insurance company would still be required to provide the omitted services at no charge and absorb the cost themselves.

“If they create a new [category] and treat these for-profits the same way they treat the religious employers, who are already exempt, that will transfer the cost on to the insurance provider,” Keim explained.

In order to relieve insurance companies of the cost of providing free birth control, the Supreme Court suggested the Obama administration could reimburse insurers for any unfunded services with taxpayer dollars. So, while religious owners of some companies might be exempt from paying for abortifacients, religious owners of insurance companies still have to cover it--and many religious Americans will be forced to cover the cost.

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