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Supreme Court pans HHS birth control option for religious employers

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The U.S. Supreme Court has implied that the U.S. Department of Health and Human Services (HHS) should rethink how it applies HHS birth control benefits mandate regulations to employers who believe that use of birth control is wrong.

The court has issued a brief ruling tossing out a 6th Circuit U.S. Court of Appeals ruling on Michigan Catholic Conference et al. vs. Burwell (Case Number 14-701).

HHS exempts houses of worship and some nonprofit organizations that are similar to houses of worship from the HHS birth control benefits mandate regulations altogether. It requires other types of nonprofit employers with religious objections to birth control benefits, and closely held for-profit corporations with owners who have religious objections to birth control benefits, to notify it about their objections. 

See also: CMS drafts birth control mandate exemption process

The employers that object to the mandate need not provide birth control benefits, but they must give health insurance company and outside benefit plan administrator information to HHS. HHS then uses the information to provide birth control benefits for the employers’ employees.

A federal district court judge refused to give the Michigan Catholic Conference and other nonprofit religious employers in the case a preliminary injunction blocking the HHS strategy for handling employers with objections to the birth control mandate. A three-judge panel at the 6th Circuit upheld the district court approach in June 2014. 

The panel argued that the HHS objector self-certification requirement does not trigger the provision of contraceptive coverage. “Instead, it triggers the entities disassociation from what they deem to be objectionable coverage,” a judge wrote in an opinion explaining the ruling. 

See also: Birth Control Hearing Witness: Can They Make Us Eat Pork?

The HHS framework does not let an affected employer prevent an insurance issuer or plan administrator from providing birth control coverage, “However, the inability to ‘restraint the behavior of a third party that conflicts with the [appellants'] religious beliefs’…does not impose a burden on the appellants’ exercise of religion,” the judge writes.

The Supreme Court indicated that it disagrees with this reasoning by asking the 6th Circuit to give the case further consideration in light of Burwell vs. Hobby Lobby Stores Inc., a 2014 case in which the court ordered HHS to make more of an effort to accommodate the religious objections of the owners of closely held private companies.

The court also gave the Association of American Physicians and Surgeons (AAPS) and allied groups leave to file a brief giving the court their views on the case.

AAPS and the allied groups argue that the HHS “‘accommodation’ effectively requires a religious non-profit to arrange for and facilitate coverage for the drugs and devices to which it objects.”

The policy “substantially burdens religious beliefs in a manner similar to that of the plaintiffs in Burwell vs. Hobby lobby,” the groups contend.

The Patient Protection and Affordable Care Act (PPACA) set the stage for the conflict by giving the HHS secretary the authority to require major medical insurers to cover a basic package of preventive services without imposing out-of-pocket costs on the enrollees, and for the secretary to design the preventive services package with help from the Institute of Medicine and the HHS Health Resources and Services Administration (HRSA).

See also: PPACA: Feds Add Contraception to Preventive Care Package

HRSA said the package should include birth control benefits. The previous HHS secretary, Kathleen Sebelius, endorsed the Institute of Medicine recommendation.