The Obamacare fight goes on and on, for both sides

You might think that once the Obama administration decided to postpone a key but controversial feature of the 2010 healthcare law -- the requirement that larger businesses offer full-time workers affordable insurance -- it would have put on hold the even more controversial requirement that employers provide free contraceptive coverage.

You would be wrong. Administration officials confirmed Wednesday that insurers will still be required to offer all 10 essential health benefits, including preventive care with no out-of-pocket costs, in new policies. That means that policies other than existing group plans will have to cover, among other things, contraceptives, the morning-after pill and sterilization.

The Congressional Research Service reported in 2012 that two different laws -- the Public Health Services Act and the tax code -- require insurers to comply with the essential benefits rules in the Patient Protection and Affordable Care Act (better known as Obamacare). Under those laws and accompanying regulations, employers could be penalized up to $100 per employee per day if the coverage they provide doesn’t meet federal requirements. Religious-affiliated employers would be subject to the IRS’ jurisdiction, while secular ones come under the Department of Labor.

Churches and other religious employers are exempt, and the administration worked out a deal with insurance companies that shields nonprofit employers affiliated with religious groups from having to involve themselves in providing contraceptive coverage to their employees. That arrangement, however, remains unsatisfactory to some of those employers (particularly those affiliated with the Catholic Church). And it doesn’t address the complaints by for-profit companies whose owners have strong religious objections to the morning-after pill.

The announcement from the Treasury Department on Tuesday indicated that insurers and employers would not be required to report to whom they were providing “minimal essential benefits” until 2015, a one-year delay. Those reports would certainly have made it easier to determine which companies were violating the contraceptive mandate. But workers whose insurance plans don’t include the required benefits will still be able to sue their employers, and the IRS or the Labor Department can always conduct their own investigations into noncompliance.

As one administration official speaking on background noted: “The preventive services provisions are already in place, some since September 2010 and some since August 2012. The reporting referenced in the delay is separate from the composition of the plans.” In fact, the requirement to provide contraceptive care went into effect in January, although some companies avoided it by renewing their existing policies in December.

Oddly, the politics surrounding the contraception mandate argue in favor of keeping the mandate in place even if it will be harder to enforce without the reports from insurers and employers. Republicans are eager to campaign against it because it plays into their theme of an excessively large and intrusive government that doesn’t respect American values; Democrats, meanwhile, contend that the GOP’s efforts are emblematic of its “war on women.”

The best-case scenario for the GOP is that the headline-grabbing fight over the contraception mandate continues in the courts next year while the federal and state governments fumble the implementation of other high-profile features of Obamacare. The Democrats would welcome the former, but they are hoping to focus the public’s attention on the introduction of insurance subsidies and the end of cherry-picking by insurers.

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