Birth Control Coverage Already Mandated By 28 States

In recent weeks access to birth control has become a controversial issue, in particular the requirement of the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148) that group health insurance plans cover FDA-approved contraception has been hotly debated. An interim final rule adopted in 2010 requires coverage of:

  • evidence-based items or services rated at A or B in the current recommendations of the United States Preventive Services Task Force; and
  • for women, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration. HRSA adopted the recommendations of the Institute of Medicine that all FDA-approved drugs and devices be included in the mandatory preventive benefit.

A proposed amendment to the regulation published last August added an exemption for religious employers.  The administration received and considered comments contending that the insurance coverage available to an employee should not depend on where she works and an uproar has ensued.

The House Committee on Oversight and Government Reform held hearings on the issue, to decide whether the requirement would infringe on the religious freedom of employers. The first five witnesses scheduled were men; most, if not all, were clergy or affiliated with religious institutions. Two women who opposed the administration’s policy testified. However, the committee did not hear a woman who came to testify in favor of the required benefit.

The final rule, which was published February 15, adopted the religious exemption in last year’s proposed rule.  To qualify for an exemption, an organization must:

  • have as its purpose the inculcation of religious values;
  • primarily employ individuals who share its beliefs;
  • primarily serve individuals who share its beliefs; and
  • have tax-exempt status.

This definition excludes organizations that serve the public, such as hospitals or universities. Reasonable people might well believe that some or all of those organizations  should be considered exempt as well. Because of the continuing controversy, the administration also issued guidance providing a “safe harbor” for religiously affiliated nonprofits delaying enforcement for the first year while it considers changes to the policy.

Amendments to PPACA were proposed to address the problem. S. 1467, introduced by Senator Roy Blunt (R-Mo.), provided that no health plan would be in violation of the PPACA minimum coverage requirements if it “declines to provide coverage of specific items or services because” providing or paying for them…”is contrary to the religious beliefs or moral convictions” of the sponsor, issuer or entity offering the plan. Note that the ability to “opt out” of coverage was not limited to reproductive services or to religious organizations.  For example, an employer could refuse to cover substance abuse treatment based on a belief that substance abuse is a sin or a character defect and not a medical problem.

On March 1, the Senate defeated Blunt’s bill but the Senator says the battle isn’t over and House Speaker John Boehner (R. Ohio) plans to introduce his own legislation. From the tone of the debate, one would never know that 28 states have mandated coverage of birth control.

According to a breakdown by the Guttmacher Institute,

  • eight states have no religious exemption;
  • four limit the exemption to churches and church associations, excluding hospitals and other entities;
  • seven have a broader exemption that allows religiously affiliated schools and, potentially, charities and universities, to opt out of coverage; and
  • four of the states with exemptions provide for the employee to access coverage without the employer’s participation.

There also is plenty of precedent in federal law for requiring contraceptive coverage. For example, the Equal Employment Opportunity Commission ruled in 2000 that an employer’s  exclusion of birth control pills from their prescription drug coverage benefit violated the Pregnancy Discrimination Act.  Under Soc. Sec. Act  Section 1905(a)(4), Family planning services are a mandatory Medicaid benefit. A birth control benefit has been available to federal employees since 1999. Other federal programs, such as the Indian Health Service and TRICARE, cover it as well.

Like other PPACA requirements, this mandate will apply only to plans that are neither grandfathered nor exempt. So, most likely, the employers who haven’t been covering contraception won’t have to start. How long the debate will continue remains to be seen.