5 questions about the contraception mandate

The Obama administration has issued its final regulations governing how the Affordable Care Act’s mandate to provide contraception coverage applies to religiously affiliated nonprofits and businesses.

But the announcement has done little to quell the objections of some religious groups. Indeed, in the weeks since the new regulations were published, one religious charity (Little Sisters of the Poor) has asked the Supreme Court to overturn a decision upholding the regulations, and a Christian school (Wheaton College in Illinois) has announced that it will stop offering its students health insurance due to the mandate.

The issue first arose in 2011, when the Department of Health and Human Services released proposed regulations under the ACA requiring many employers to provide health insurance that offers female employees free contraceptive services. While faith groups directly involved in religious ministry (such as houses of worship) were exempted from the requirement, religiously affiliated nonprofits (such as hospitals, universities and charities) and for-profit businesses whose owners opposed some or all contraception on religious grounds were not.

Efforts by the administration and religious groups to find a compromise for nonprofits largely failed, and many religious nonprofits and businesses sued, arguing that requiring them, even indirectly, to provide free birth control violates First Amendment protections of religious liberty as well as federal law.

As the debate over the mandate continues, here are five questions and answers about the controversy:

1Why do some people and groups oppose the mandate? Opponents claim that the mandate severely curtails their religious freedom by forcing them to act against their deeply held beliefs. Indeed, they argue that even filling out the paperwork to opt out of the contraceptive mandate makes them an accessory to the provision of birth control and violates important moral and religious teachings. These opponents include Roman Catholics who follow the church’s teachings against artificial means of birth control, as well as some Protestants and people of other faiths who oppose abortion and believe that using emergency contraception like the so-called morning-after pill is akin to abortion.

2How do the American people feel about this mandate? Pew Research Center’s most recent survey on this topic in February 2012, before the administration amended the rule, found a divided public: Among those who had heard about the issue, 48% said religiously affiliated institutions that object to the use of contraceptives should be exempted from the rule, while 44% said they should be required to cover contraceptive services like other employers. Since then, attitudes toward the health care law in general and the contraception provision specifically may well have changed.

3The Supreme Court ruled last year that the contraception mandate violated a federal law protecting religious freedom. Why didn’t that end the debate? The court’s decision in the Hobby Lobby v. Burwell challenge applied only to certain types of for-profit businesses and did not address the concerns of religiously affiliated nonprofits. In Hobby Lobby, the high court ruled that closely held, for-profit businesses (i.e. companies that are not publicly traded) could opt out of the mandate if the owner or owners of the firm had religious objections to providing one or more kinds of contraception to their employees. The justices have yet to decide whether they will hear any of the challenges to the mandate brought by religiously affiliated universities, charities and other nonprofits.

4Is the Supreme Court likely to weigh in again on the mandate anytime soon? The court could well hear another contraception mandate case in the near future. In March, the high court threw out a ruling by the 7th U.S. Circuit Court of Appeals rejecting the University of Notre Dame’s challenge to the mandate and asked the appeals court to reconsider the case. The next month, the Supreme Court halted enforcement of the mandate against other Catholic groups. At the same time, every federal appellate court that has reviewed the government’s contraception mandate has upheld it, including the 7th Circuit in its reconsideration of the Notre Dame case. This lack of clarity has prompted many legal experts to say that it’s quite possible, even likely, that the Supreme Court will take up at least one of these cases as early as this fall.

5What changes to the mandate did the administration make in its just-announced final rules? The new regulations give religiously affiliated nonprofits and closely held businesses the option of not providing free contraception when they offer health insurance to their employees. In cases where the firm or organization elects not to provide contraceptive services, their health insurance company is required to offer and pay for a separate policy solely to provide free contraception to female employees who work at these organizations and businesses.

Note: This post was originally published on Jan. 2, 2014, and was updated on Aug. 5, 2015.