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UPDATE: The White House announced a compromise Feb. 10, 2012, on who pays for free contraception. Here's our guide to the policy prompted the president's new plan.
Is President Barack Obama’s administration requiring the Catholic Church to provide birth control coverage to nuns?
As rhetoric rises in a clash between Catholic leaders and the federal government over a rule requiring co-pay-free coverage of contraceptives in most health plans, here’s a guide.
What the rule says
The newly final rule stems from the Affordable Care Act of 2010 — what Republican presidential candidates call "Obamacare." It affects the health plans employers offer their employees. Among its requirements is that most plans include birth control coverage without out-of-pocket costs. But it’s part of a broader push to provide preventive care without extra fees.
Preventive services: The law requires most health plans to cover recommended preventive services without co-pays or deductibles. But the law left to the administration to decide which women’s health services to include.
Birth control and sterilization: The Health and Human Services Department created the guidelines for women’s health services based on recommendations from the Institute of Medicine, the health arm of the National Academy of Sciences. The guidelines say preventive services must include all birth control approved by the Food and Drug Administration, plus sterilization.
What birth control is FDA-approved: Everything from physical methods such as condoms, diaphragms, cervical caps and intrauterine devices — IUDs — to hormonal methods such as the pill, implants and hormone shots. It includes emergency contraceptives such as Plan B and Ella, which prevent fertilization of an egg or the implantation of a fertilized egg, though not so-called "abortion drugs" like RU-486 that end an early pregnancy by blocking the activity of progesterone.
What the administration did
The Obama administration carved out a religious exemption for most churches and some parochial schools. But it’s unlikely to apply to a range of other church-affiliated organizations such as hospitals, universities and charities. The guidelines, suggested by the Health and Human Services Department in August 2011, were made final over Catholic organizations' objections on Jan. 20, 2012.
Will the administration change its mind? There was some suggestion this week by David Axelrod, a campaign adviser to President Obama, that compromise was possible. But there’s no word on that from HHS.
What the Catholic Church says
According to the teachings of the Catholic Church, any contraceptive violates moral law. In 1968, Pope Paul VI spelled it out. Any act specifically intended to prevent getting pregnant — other than timing sex for the infertile part of a woman’s cycle — is unlawful, he wrote. Not only that, it was "an evil thing," he said, to make it easy to break moral law.
That puts Catholic organizations in a tough spot. If contraceptives must be offered without a co-pay, that means the cost is spread among employers and all insured employees whether they use the coverage or not, bishops argue. Catholics would end up paying for birth control, breaking moral law.
So the U.S. Conference of Catholic Bishops is leading the political charge to overturn the administration’s decision. A religious exemption that applies primarily to churches is too narrow, bishops argue. Two Catholic colleges have sued; new laws have been proposed in Congress; and bishops are urging parishioners to write to lawmakers.
A quarter of the U.S. population is Catholic. That’s not to say all Catholics oppose the Obama administration's rule. A Guttmacher Institute study based on government data shows that most Catholic women use birth control at some point in their lives, nearly the same as all women. Meanwhile, two recent polls show a slim majority of Catholics favor the rule.
Sticking point: definition of ‘religious employer’
So, about that religious exemption, which Catholic bishops argue is too narrow. Here’s how it works: Organizations have to meet a four-part test for what the government calls "a religious employer." It’s not simple to say which types of religious organizations will have to offer co-pay-free birth control coverage, and which won’t, because it depends.
The test: A religious employer:
• Is a nonprofit organization
• Has the inculcation of religious values as its purpose
• Primarily employs persons who share its religious tenets
• Primarily serves persons who share its religious tenets
Case by case: It hasn’t yet been decided how that test will be applied, though it will likely be case by case. That will come with final HHS rules on the larger issue of preventive care later this year. Meanwhile, nonprofits that haven’t offered birth control because of religious beliefs have an extra year to comply with the new rule — by Aug. 1, 2013, instead of this summer.
How the rule might apply
Catholic nun working in a Catholic church: Assuming the church primarily employs and serves other Catholics, it wouldn’t be required to offer coverage for birth control to its employees, including nuns.
Jewish classroom aide at a Catholic primary school: A Catholic primary school that employs primarily Catholic instructors and teaches mostly Catholic kids wouldn’t have to offer contraceptive coverage to its employees, so this aide, no matter her religion, wouldn’t get co-pay-free birth control unless her school decided to offer that coverage.
Catholic custodian at Catholic primary school: On the other hand, if a Catholic primary school hired diverse employees and taught non-Catholic kids alongside Catholic ones, it would have to offer co-pay-free coverage. A Catholic worker would have the option to get birth control without paying extra.
Atheist office worker at a Catholic university: A Catholic university that hires based on merit rather than religion and admits students of all faiths would have to offer contraceptive coverage — for its Catholic employees along with its non-Catholic employees.
Catholic nun working as a Catholic hospital administrator: A Catholic woman who works as an administrator for a Catholic hospital that employs and serves non-Catholics would have coverage that included co-pay-free birth control. So, yes, even nuns with employer-provided health care would have birth control coverage.
What if non-exempt organizations say no?
Some Catholic leaders, such as St. Petersburg Bishop Robert Lynch, have said that if the rules don’t change, they’ll stop offering employee health coverage in protest. Lynch said he might stop providing health care for his diocese’s 2,300 employees. (It’s not yet clear whether the diocese would qualify for a religious exemption.)
What would happen? Well, the law doesn’t require employers to offer health insurance. But starting in 2014, if their employees qualify for premium tax credits to buy their own insurance, available to low- and middle-income people, employers must pay a $2,000 assessment per full-time employee past the first 30 employees.
Meanwhile, their employees would find that most available health plans would be required to cover contraception.
CORRECTION: This item has be updated to reflect that Plan B works both to prevent fertilization of an egg and, taken later, implantation of a fertilized egg. Ella works mainly by delaying ovulation, but may also work by preventing implantation of a fertilized egg. RU-486 ends an early pregnancy by blocking the activity of progesterone. Meanwhile, a reference to poll results among "Catholic voters" should have said "Catholics."
PolitiFact, "Newt Gingrich says government would impose 'Obamacare' standards on religious institutions," Jan. 31, 2012
PolitiFact, "White House official says 98 percent of Catholic women have used contraception," Feb. 6, 2012
HealthCare.gov, "Affordable Care Act Expands Prevention Coverage for Women’s Health and Well-Being," Aug. 1, 2011
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