On August 1, 2011, the Health Resources and Service Administration issued guidelines specifying that, among the preventive health services that, under the Affordable Care Act, must be covered, without cost sharing, by group and individual health insurance plans, are “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” The requirement applies to plans or plan years that begin on August 1, 2012, or later. The Catholic Church opposes birth control drugs and sterilization; the Church and others regard some of the FDA-approved contraceptives—Plan B (levonorgestrel), the so-called “morning after pill,” and ella (ulipristal acetate), the “week-after pill”—to be abortifacients. On that same August day, the Department of Health and Human Services (“HHS”) announced an amendment to its July 19, 2010, interim final regulations, the regulations governing the requirement that health plans must cover preventive health services. The amendment provided an exemption from the coverage requirement (hereinafter, “contraceptives mandate”) for “religious employers.” The Administration noted that some commenters on the interim final regulations had “asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom.” The religious employer exemption responded to this conscience or religious freedom concern.
However, the religious employer exemption met immediate and growing criticism from religious organizations and religious communities.