HHS guidance on insurance companies in violation of the HHS contraceptive mandate

On Monday, the Department of Health and Human Services (HHS) quietly issued “guidance” to health insurance companies which were in violation of the Affordable Care Act’s (ACA) contraceptive mandate. The department made this move after the Kaiser Family Foundation published a report showing that insurance companies are not covering all contraceptives that the ACA requires. Out of the twenty insurance carriers in 5 states that Kaiser surveyed, one did not cover the Nuva Ring, two did not cover contraceptive implants, one did not cover non-hormonal IUDs, and two did not cover the “emergency contraceptive” ella.  

You would think these insurance companies would be quaking in their loafers. After all, the government has threatened nonprofit ministries like the Little Sisters of the Poor with millions of dollars in IRS fines for not letting their health plans be used to deliver contraceptives and abortion-causing drugs. Surely the government would be equally strict with big business.  

{mosads}You could not be more wrong. HHS instead said that its prior guidance “may reasonably have been interpreted in good faith” to allow insurance companies to exclude drugs to save money.  But starting with the next plan year (which could begin as late as July 2016), they should provide all the drugs. There was not even a hint that failure to do so would result in fines. 

From this we can learn two things. 

First, when big insurance companies try to save a few dollars at the expense of their policyholders, the government finds it “reasonable” and gives them more than 14 months to comply. But when Catholic nuns and other ministries ask not to have their health plans turned into contraceptive-delivery systems, the government accuses them of being afraid of “invisible dragons” and threatens to crush them with IRS fines.  

Second, we learn that the government could fix this whole conscience problem tomorrow—if it wanted to. HHS could issue “guidance” allowing people who don’t like their religious employer’s plan to get a subsidized plan on the exchanges. It could issue “guidance” making it easier for them get contraceptives thorough the $300 million dollar Title X program. It could also issue “guidance” encouraging them to go to community health centers, which just received $101 million from HHS. Or—most simply of all—it could issue “guidance” announcing that from now on, it will treat the Little Sisters of the Poor the same way that it treats the bishops, who are fully exempt from the contraceptive mandate. 

But HHS has not done any of these things. Instead, it continues to treat the Little Sisters of the Poor and other religious ministries like second-class citizens whose consciences are less important than the financial interests of insurance companies. The ACA exempts 96 percent of all American businesses from providing any contraceptive coverage – or any health coverage at all – under the small business exemption. And under the grandfathering exemption, big businesses that employ tens of millions of Americans can continue to exclude any contraceptives they want from their health plans, so long as they keep the same basic benefits they offered in 2010. Now we know that insurance companies have been ignoring parts of the HHS mandate for years without consequence. But religious objectors? Even ministries that offer nearly every contraceptive available in the U.S.—all but those that may end a human life—are still subject to daily fines amounting to millions of dollars.   

The government has decided to tighten its rules for insurance companies. But the difference between how it has treated insurers and religious ministries could not be more stark. Secular insurance companies trying to save a buck get, at most, a gentle rebuke. Religious ministries living out their deepest commitments? Years of litigation and millions of dollars in fines.  

Keim is an attorney with the Becket Fund for Religious Liberty.