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Commentary blasts bishops' purported compromise on contraceptive coverage

In a Rewire analysis, Jessica Mason Pieklo writes about how a proposal from the United States Conference of Catholic Bishops (USCCB) that claims to address objections organizations that hold themselves out as religious have to federal contraceptive coverage rules is unfeasible and seeks to "upen[d]" comprehensive coverage.

Mason Pieklo states, "[O]ne read of the proposal makes it clear that the only thing the bishops and the religiously affiliated nonprofits they represent are serious about ending is seamless health insurance coverage of contraception for those who depend on it -- mostly students and low-wage workers."

According to Mason Pieklo, "The bishops filed the proposal in the wake of Zubik v. Burwell, the case challenging the birth control benefit accommodation process last summer." In a ruling earlier this summer, "the U.S. Supreme Court ordered both the religiously affiliated objectors and the Obama administration to work out a compromise on the benefit instead of litigating it to death." She writes, "To date, the administration has filed six requests for comment on how it can best accommodate institutions that claim a religious objection to complying with the [Affordable Care Act's (ACA) (PL 111-148)] birth control benefit, without upending the ACA's goal of providing affordable and comprehensive health insurance coverage for as many people as possible." However, "upending that comprehensive coverage is exactly what the bishops want to do," Mason Pieklo states, and USCCB's letter "makes that crystal clear."

USCCB's untenable proposal

Mason Pieklo writes, "First, the bishops take issue with the idea that the ACA was ever intended to provide comprehensive insurance coverage to begin with." She calls that suggestion "not just bold" but also "factually inaccurate," noting four years have passed since "the Obama administration notched its first Supreme Court win defending the comprehensive coverage goals of the ACA." She adds, "There is nothing new about the birth control benefit, and suggesting otherwise is ridiculous."

Further, USCCB's proposal for addressing the religious groups' concerns "isn't actually a solution at all," Mason Pieklo writes, adding that the bishops "almost certainly know this." She explains that USCCB's proposal calls for "a separate policy for contraception coverage, which would have its own separate enrollment process, its own separate insurance card, and its own separate source for coverage and premium payments." Moreover, according to Mason Pieklo, USCCB in its proposal notes that for the "'contraception-only plan'" to be "'truly independent '" from the objecting employer's plan, enrollment "'must not be automatic.'"

Mason Pieklo states, "'[T]his 'compromise' is not actually a guarantee of contraception coverage, because there is no automatic enrollment." She writes, "It is also something that takes additional, affirmative steps to contact the insurance company by the employee or student who wants the coverage." She adds that "it would be up to the employees to enroll on their own."

Further, Mason Pieklo explains that USCCB wants the contraceptive-only plans to be "completely separate, like vision or dental benefit plans often are now." She writes, "There are a few problems with this suggestion." One, she notes, "is the fact that contact lenses have virtually nothing in common with prescription birth control, other than the fact that, well, a prescription is involved." Another is that "[r]arely, if ever, does segregating out health-care services for separate coverage guarantee that coverage is affordable," Mason Pieklo writes. Moreover, Mason Pieklo states, "Birth control is preventive medicine. Therefore, we shouldn't even be having this discussion at all -- because the law requires all insurance plans cover preventive care without additional co-pay or co-insurance."

Mason Pieklo also cites issues with USCCB's proposal to "[l]et employees and students just buy their own insurance on the Obamacare exchanges." She writes, "Never mind that potentially requiring employees to pay out-of-pocket on the exchange for coverage the law says they are entitled to amounts to gender-based discrimination in benefits."

Moreover, according to Mason Pieklo, "this proposal is, again, not actually possible under the ACA." Paraphrasing former Solicitor General Donald Verrilli, she writes, "because contraception is specifically included in the ACA as part of the Women's Health Amendment, to pull contraception out and offer it up as a rider, or a separate plan, would require Congress to amend the Women's Health Amendment under the ACA." She adds, "The bishops know this, too, and they don't seem to care."

Citing repeated attempts by the Obama administration to accommodate conservatives' objections to the contraceptive coverage rules, Mason Pieklo states that the administration "has done what it has the power to do: It both defends the law and engages the regulatory process over and over again to try and appease those purported religious objections." Nonetheless, despite these efforts, Mason Pieklo writes, "Appeasement is not possible. Compromise cannot happen." She asserts, "That's because, as the bishops made clear in this latest letter, it is only when the ACA openly allows for health insurance plans to, once again, discriminate on the basis of sex and gender, will they end their challenges to the health-care reform law" (Mason Pieklo, Rewire, 9/14).