The Final Contraceptive Coverage Rule: Why You Should Stay Away From Any Organization That ‘Self-Certifies’

The Obama administration once again bends over backwards to accommodate "religious institutions" at the expense of religious freedom and public health, with unknown consequences down the line.

The Obama administration once again bends over backwards to accommodate "religious institutions" at the expense of religious freedom and public health, with unknown consequences down the line. God's word is always the best medicine via Shutterstock

On June 28, the Obama administration released the final version of the contraceptive coverage rule. Beginning January 1, 2014 women who aren’t already benefiting from the Affordable Care Act’s mandated contraceptive coverage, like those employed at religiously affiliated organizations that took advantage of the enforcement safe harbor, will be able to receive contraceptive coverage directly from their insurance companies, rather than their employer-provided plans. This “religious accommodation” makes employers’ involvement in contraception use even more remote, while ensuring that women still have access. [1]

The bishops and other anti-contraception crusaders will not be happy with the religious accommodation, so expect the lawsuits dismissed as premature or held in abeyance back in court soon. That aside, it is important to understand how far the Obama administration bent for the contraception opponents and how little it demanded in return. Organizations are not even required to make their religiously based objection to birth control public.

Granting the religious accommodation without abandoning women with religiously affiliated employers is possible because of the unusual economics of contraceptive coverage: the Obama administration can tell insurance companies to cover contraception without a co-pay, because providing it is cost-neutral for insurers. All (reasonable) parties can have their way—employers don’t have to provide plans with coverage, but employees can still get it, and insurers don’t have to pick up “the bill” because there really isn’t one. But the problem remains that religiously affiliated employers are being excused from the law without having to make even the smallest disclosures about their organizations in return. This sets an unwelcome precedent for future demands for special treatment.

I argued both in a piece for Rewire and in a comment to the rule that the “self-certification” for the religious accommodation should entail explicit and public disclosures about how the organization “holds itself out as religious,” who determines what constitutes the religious beliefs of the organization, and what those beliefs are. In releasing the final rule, the government acknowledged it received comments to that effect, but further reduced the disclosures required for the accommodation. In order to qualify for the religious accommodation, organizations need only fill out a two-page form and file it with their insurer. And the form no longer even requires organizations specify the contraceptive services to which they object.

This is an invitation for organizations to characterize themselves as religious when they want an exemption from the law but secular when they want government funding. For example, Manhattan College and St. John’s University tell the state of New York they are not church-controlled to get taxpayer funds, then turn around and tell courts they are church controlled when they don’t want to have to deal with employees unionizing or abide by the Americans with Disabilities Act.

There are lots of reasons the claim that requiring contraceptive coverage is a religious freedom violation shouldn’t fly. But given the increasing frequency with which religiously affiliated organizations get what they want, simply requiring them to own up to whatever they purport to believe would be a big step in the right direction. Instead, they are currently free to make opposite representations depending on who is asking without any consequences.

The self-certification is insufficient, but it can still serve as a useful litmus test. Before you enroll or accept a job at any religiously affiliated organization, find out if it self-certified. If it did, steer clear. I realize, that may not be possible if you are a social worker in an area where Catholic Charities has a monopoly, or if you need to go to whatever school gives you the best financial aid, or if you’ve worked somewhere for years that has just now discovered it opposes contraceptive coverage. But the general rule should be: stay away from institutions that self-certify. It is impossible to anticipate on what other grounds they will claim an entitlement to discriminate or otherwise impose religious doctrine in the future. Even if they tell you separate birth control coverage is one quirk at an otherwise welcoming place for women, or gay people, or Jews, or whoever else—stay away. They probably have or would take the opportunity to discriminate in other contexts.

Whether an institution self-certifies may not be easy to find out initially. The Obama administration has declined to require organizations to make public even the minimal information contained in the self-certification form. They are required to make it available on request to beneficiaries, but that won’t help prospective students and employees. Hopefully, Rewire will help us compile this information, but in the meantime, you’ll need to ask that friendly admission counselor or HR representative to find out for you.

I am emphatically not someone who believes one should avoid all religiously affiliated organizations.[2] I am a defender of the excellence and autonomy of Catholic-affiliated universities, which are places for scholarship rather than the dogmatic indoctrination contraception opponents make them out to be. And I know that Catholic-affiliated hospitals and social service agencies can do great work. The problem is determining what kind of Catholic-affiliated organization you are signing up with. If an institution doesn’t have the independence and commitment to the best interests of its constituents to provide a standard health plan, and if it is willing to make the vague assertion of being religious that self-certification requires, that should be a red flag for anyone who doesn’t want to take orders from the bishops.

Self-certifying may also tell you something about the honesty of the organization’s leadership. For example, if Georgetown were to self-certify, in order to continue to bar students from purchasing coverage despite the fact it currently provides coverage to faculty, that would say something about how much equity and fair-dealing are valued there. It might not be a great place to train to be a civil rights attorney or study feminist theology. Even if it is today, you can’t count on that being the case down the line.

Because the Obama administration has made it so easy for institutions to gesture to the bishops by taking the accommodation, without actually depriving employees of contraceptive coverage and suffering the backlash likely to occur, some people will be tempted to think there won’t be a problem at an institution that isn’t opposed to health care equity enough to sue.  In the end, you get your contraceptive coverage anyway. But the problem is what the next religious freedom claim will entail.  Invoking the religious exemption in the Employment Non-Discrimination Act to discriminate against gay people? Firing you for having a medical procedure? Overriding the biology department on scientific questions? Censuring books?  There’s no way to know: so steer clear.

[1] It doesn’t help women employed at houses of worship, which are exempt from the rule rather than subject to the accommodation.

[2] But you should absolutely avoid Catholic hospitals for OB/GYN and end of life care.  And do your research to make sure your hospital with a secular-sounding name isn’t Catholic-controlled.