Troubling Gaps Remain in ACA Contraceptive Mandate Accommodation Regulations, Experts Say

Newly Released Regulations Governing Accommodation Process for Religious Objectors to Affordable Care Act Contraceptive Coverage Requirement Incorporate Suggestions Made By Prominent Law Professors But Do Not Go Far Enough To Protect Women's Access

New York, July 13, 2015—The Obama Administration on Friday released two sets of regulations governing the process by which for-profit companies may object on religious grounds to providing insurance coverage for contraception to their employees as required by the Affordable Care Act.

Implementing the Supreme Court’s 2014 Hobby Lobby v. Burwell ruling, the regulations apply to for-profit entities that are not publicly traded and in which five or fewer individuals collectively own more than 50 percent of the company.
According to Columbia Law School’s Public Rights/Private Conscience Project (PRPCP), important aspects of these new rules adopt the suggestions submitted to the Department of Health and Human Services (HHS) last fall by the PRPCP and signed by more than 40 leading corporate law scholars. Nevertheless, the regulations are broader than what is required by Hobby Lobby and inadvisably increase the number of entities eligible for an exemption, leading to greater potential for abuses, gaps, and delays in coverage.
“We are gratified to see that the administration followed our advice and has imposed some limitation on the number of equity-holders that a company may have to qualify for a religion-based accommodation to the contraceptive coverage requirement under the Religious Freedom Restoration Act,” said Professor Katherine Franke, faculty director of the Public Rights/Private Conscience Project.  “But the regulations could have been drawn more narrowly to reflect the kind of businesses recognized by the Supreme Court in Hobby Lobby. These new rules will allow accommodations for businesses with many more owners, who might also have much more diverse religious views, than the family-owned corporations at issue in the Hobby Lobby case.”
Another set of final regulations released Friday allows religious employers to notify the Department of Health & Human Services (HHS) of their objections (rather than their insurance company as the initial regulations required), after which HHS will work with other government agencies and the insurance provider to ensure seamless coverage.
“We are pleased that the administration is committed to ensuring contraceptive coverage for all women who are entitled to it under the law,” stated Kara Loewentheil, director of the Public Rights/Private Conscience Project. “We urge the relevant government entities to carefully monitor and vigorously enforce these regulations to ensure no gaps or delays in access or coverage.”
The Public Rights/Private Conscience Project is a unique law and policy think tank based at Columbia Law School. The PRPCP conceptualizes new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminates those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.