Michigan judge grants injunction exempting private business from contraception coverage requirement

Posted on November 1, 2012 | No Comments

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Judge Robert H. Cleland of the U.S. District Court of the Eastern District of Michigan granted a preliminary injunction exempting Weingartz Supply Company from the Affordable Care Act’s (ACA’s) contraception coverage requirement. Thomas More Law Center is representing Weingartz. The injunction marks the second time that a judge has issued an injunction for a private company on this provision. However, the Michigan judge did deny a preliminary injunction to Legatus, a nonprofit conservative Catholic business organization that filed suit alongside Weingartz. Because the business is a religious organization, as opposed to a private business owned by a religious individual, Legatus qualifies for the ACA “safe harbor,” and thus is not mandated to cover contraception while the Obama administration finalizes the exemption policy.

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In a joint rule released by the US Department of Health and Human Services (HHS), the US Department of the Treasury (DoT), and the US Department of Labor (DoL), the administration finalized the requirement for employers to offer contraception coverage through their workplace health insurance policies. The rule defines a "religious employer" to include predominantly churches and houses of worship. For religiously-affiliated institutions, such as universities, the rule provides a simplified process by which insurance companies can cover contraceptives for employees. Religiously-affiliated entities using self-insured plans can use the same streamlined approach for a third-party administrator to provide contraceptives. In addition to the rule, the administration extended the safe harbor for religiously-affiliated hospitals and universities, which prevented those institutions from fines associated with non-compliance to the contraception mandate, through January.
The Obama administration issued proposed rules for public comment regarding contraceptive coverage with no cost sharing under the Affordable Care Act (ACA). The proposed rules provide women with coverage for preventive care that includes contraceptive services with no co-pays. Importantly, the rule accounts for concerns of some religious organizations by extending accommodations that provide enrollees separate contraceptive coverage with no co-pays, but at no cost to the religious organization. Insured plans: For insured plans, including student health plans, the religious organizations would be required to provide notice to their insurer. The insurer would then be responsible for notifying enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies. Self-insured plans: For self-insured plans, as well as student health plans, religions organizations would be required to notify third party administrators. The third party administrator would then work with an insurer to arrange no-cost contraceptive coverage through separate policies. Additionally, the proposed rules provide a detailed definition of "religious employer” for the purposes of the exemption. Click here for a fact sheet.
The Center for Consumer Information and Insurance Oversight (CCIIO) of the U.S. Department of Health and Human Services (HHS) has issued a bulletin providing further guidance on the coverage of contraceptive services without cost sharing. In an August 2011 interim final rule (IFR), HHS required non-grandfathered health plans to provide such coverage beginning August 1, 2012, but also included a temporary safe harbor from enforcement in the rule for employers objecting based on religious reasons. In this latest guidance, CCIIO clarifies what types of employers are eligible for the safe harbor and when specifically it can be invoked. To qualify for the temporary enforcement safe harbor and thus be excluded from the contraceptive coverage mandate, organizations must be nonprofits, from February 10, 2012 onward, they must not have provided contraceptive coverage due to religious beliefs; they are mandated to disclose to participants that contraceptives are not covered; and they must self-certify that they satisfy the three aforementioned criteria. The Obama administration noted that the ACA provision would provide women with access to preventive services, including contraceptives, without cost sharing, while ensuring nonprofit religious organizations are not forced to cover any contraceptive service to which they object.
Today, 47 million women receive access to eight new preventive health care services without copay. The Affordable Care Act (ACA) provision requires plans to cover the following services: * Well-woman visits. * Gestational diabetes screening that helps protect pregnant women from one of the most serious pregnancy-related diseases. * Domestic and interpersonal violence screening and counseling. * FDA-approved contraceptive methods, and contraceptive education and counseling. * Breastfeeding support, supplies, and counseling. * HPV DNA testing, for women 30 or older. * Sexually transmitted infections counseling for sexually-active women. * HIV screening and counseling for sexually-active women. The aforementioned covered services are based on recommendations from the Institute of Medicine, which relied on independent physicians, nurses, scientists, and other experts as well as evidence-based research to develop its recommendations. Group health plans and plans that have maintained grandfathered status are not required to cover the new services. Additionally, certain religious institutions are also exempt.
Hobby Lobby, a Christian-run arts and crafts chain, filed for an emergency injunction on December 21, 2012 with the Supreme Court to block President Obama's birth control coverage rules. Hobby Lobby's complaint surrounds the Affordable Care Act's (ACA's) requirement that most employers cover contraception without copay. Yesterday, the Supreme Court today denied Hobby Lobby's request, which was joined by the Christian book company, Mardel. The U.S. Supreme Court said it will not decide the case before lower courts have ruled. Justice Sonia Sotomayor argued that the petitioners did not meet the standards requisite for a preliminary injunction. The court also denied the request that the court take up the entire case, in which they argue that the ACA's contraceptive coverage requirement forces them to violate their religious beliefs. The case will return to the district court for a ruling on the merits of whether the Obama administration can require employers who have religious objections to contraceptive coverage to provide said insurance coverage in their employer plan.
The Supreme Court on Monday ordered the Fourth Circuit Court of Appeals to examine the constitutionality of the Affordable Care Act's (ACA's) employer requirement to cover contraceptives without a co-pay. This move could put the ACA in front of the Supreme Court again as early as next year. The order was in response to a request from Liberty University, one of the groups that sued over the mandate in 2010. After the June ruling, the Supreme Court dismissed Liberty's entire lawsuit. Over this past summer, Liberty asked the Supreme Court to reopen the arguments pertaining to the employer mandate and the contraceptive coverage mandate. The court agreed to the request and today's order instructs the Fourth Circuit to review both pieces of the argument.
On Friday, U.S. District Judge Reggie Walton granted a preliminary injunction to Tyndale House Publishers, enabling the company to reject the Affordable Care Act (ACA) provision which requires employers to provide its employees with contraceptive coverage. The company argued that it does not want to cover contraceptives, as it  views them as abortions. Plan B and IUDs are the contraceptives at issue in the case. If a woman is already pregnant, the Plan B pill has no effect. Plan B merely prevents ovulation or fertilization of an egg. Plan B can also prevent a fertilized egg from implanting on the uterine wall. IUDs mainly work by blocking sperm, but may also have the same anti-implantation effect. According to Tyndale, this implantation prevention is not morally different than abortion. Tyndale president and CEO Mark D. Taylor filed the lawsuit against the U.S. Department of Health and Human Services (HHS) last month, arguing that the provision causes employers to violate their religious beliefs. In his decision, Judge Walton acknowledged that the government has interests in promoting public health and ensuring that women have equal access to health care, but he said that the government has not offered proof that the ACA's contraceptive coverage provision furthers these interests.
This update to our March 2012 implementation brief reviews recent implementation efforts by the Administration in connection with coverage of contraceptives as a required element of required preventive services for all individual and (non-grandfathered) group health plans under the Affordable Care Act. The earlier brief reviewed the Administration’s final rules defining the scope of contraception coverage, as well as the scope of the religious exemption that would apply to employers that seek an exemption from this coverage requirement. Reflecting prior law on this matter, the final rule preserved...