Mandated Benefits, “Conscience” Laws, State Legislatures and Birth Control

The controversy continues over the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148) requirement that qualified health plans include coverage of contraception. HHS continues to receive comments on the proposed and interim final rules.

Meanwhile, some state legislators have taken up the cause they describe as religious freedom, i.e., excusing as many professionals, employers and payers as possible from any obligation to provide or pay for contraception. About 28 states currently have laws requiring coverage of contraceptives.  Many of them have exemptions for religious employers.The definition of “religious employer” varies. Most commonly, a religious employer must be a tax-exempt organization or a church under specific sections of the Internal Revenue Code. States may also require that the organization primarily serve members of the faith, primarily employ members of the faith, or have a stated purpose to inculcate religious values. Most require at least two of the three.

Arizona’s 2002 law applied to employer-based coverage and provided for an exemption for religious employers who primarily serve members of their faith. This year, the Arizona legislature considered a controversial amendment that would have permitted any employer to eliminate coverage of contraceptives based on the employer’s religious or moral beliefs. As passed by the House, the bill would have allowed the employer simply to file an affidavit stating its religious objection to coverage of contraception. If a woman needed birth control or other prescription contraception for a medical reason unrelated to preventing pregnancy, she could pay for the prescription and then submit a claim to the insurer with medical evidence of the reason for coverage. The House bill removed existing provisions that prohibited the employer from discriminating against any employee who chose to obtain prescription contraceptives.

The state Senate would not go quite so far.The bill agreed to, and signed by Governor Jan Brewer, limits the exemption to organizations whose articles of incorporation state that the organization is “religiously motivated” and that the religious beliefs are central to the organization’s operating principles. The Senate added provisions that the law: (1) did not give the employer a right to see the employee’s protected health information; and (2) would have no effect on the operation of either the Health Insurance Portability and Accountability Act (HIPAA) or any laws prohibiting discrimination in employment.

Legislatures also try to impede access to contraception through “conscience” laws, which permit healthcare providers, practitioners and, sometimes, payers, to refuse to participate in furnishing any item or service if doing so would violate a religious belief.  Arizona already had such a law, but this spring it broadened the protection with respect to the holders of professional licenses and certificates.

Illinois has had a mandated birth control benefit since 2003 for both individual and group health policies; the law also extends to health maintenance organizations and health services plan corporations.  But the state’s conscience law, passed in 1997, exempts not only professionals and facilities, but also payers, from obligations to participate in or pay for services in violation of their conscience or ethical beliefs. The beliefs must be part of the payer’s governing documents, which may include its constitution, articles of incorporation, bylaws, mission statement or ethical guidelines. State administrative rules required pharmacists to dispense emergency contraception regardless of their religious beliefs. Last year, however, a state circuit court invalidated the rule on the ground that it violated both the state’s conscience law and the First Amendment right to free exercise of religion.

New Hampshire has had a law mandating birth control coverage since 1999. There was little debate at the time, and the Catholic Church did not object. This year, when the controversy arose in Congress, some  state legislators became aware of the issue. The state House passed legislation to expand the exemption for religious employers to protect any employer who claimed a religious objection. The Senate referred the bill to a study committee, and it is not expected to go further.

Missouri, Idaho and Kansas also have addressed the birth control issue this year. As of May 17, a conference committee is considering a proposed expansion of Missouri’s conscience law. Kansas Governor Sam Brownback recently signed a bill expanding the state’s conscience law to allow to refuse even to refer a patient to another professional, pharmacy or facility for any item or service “an effect of which [the professional] reasonably believes may result in the termination of a pregnancy.”

Exactly what may the professional refuse to help the patient get? That depends on when pregnancy begins.Where the state has legally declared that human life and legal personhood begin at fertilization, that definition conflicts with the medically accepted definition that pregnancy is established with implantation. It also conflicts with existing case law, as discussed in the recent post on developments in the Texas litigation.