Contraception Mandate and Religiously Affiliated Employers

The Volokh Conspiracy:  Repeating "That Is A Fact" Does Not Make It So, by Jonathan Adler:

Near the end of Thursday night’s vice-presidential debate, Vice President Joe Biden said the following:

With regard to the assault on the Catholic Church, let me make it absolutely clear. No religious institution, Catholic or otherwise, including Catholic Social Services, Georgetown Hospital, Mercy — any hospital — none has to either refer contraception. None has to pay for contraception. None has to be a vehicle to get contraception in any insurance policy they provide. That is a fact. That is a fact.

VP Biden may well believe this, but it is not true. In February HHS finalized the regulations mandating the inclusion of contraception in employer-provided health plans and exempting houses of worship, but not religious universities, hospitals and charities. At the time the Administration announced its intent to accommodate other religious employers, but no such accommodation has been forthcoming. This is because creating such an accommodation is difficult. Some religious institutions self-insure, so shifting the obligation to insurers would not do the trick (and it’s not clear HHS has the authority to impose such a requirement anyway). In March, HHS issued an Advance Notice of Proposed Rulemaking and postpone enforcement of the existing rules against religious employers, but did not detail any regulatory change that would effectively relieve objecting religious institutions from paying for contraception. This is one reason why there are over two-dozen lawsuits against the contraception mandate pending in federal court. . . .