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All heat and no light: The contraception kerfuffle

First, the legal claims are losers. The accommodation is clearly constitutional. It is a generally applicable law, and is not targeted at any particular religious group or practice. In the key case, Justice Scalia, writing for the Court held, government must be able to enact general laws, and most any law trespasses upon someone’s conscience.
{mosads}The highest state courts of both California and New York upheld more demanding contraceptive coverage requirements, reasoning that institutions that serve and employ members of the general public, and choose a mission beyond a religious one, can fairly be treated as public institutions. Workers are there for a job, and not worship — so courts protect their rights to make their own health decisions.
The Religious Freedom Restoration Act (RFRA) also poses no problem. Under RFRA, a provision must “substantially” burden religious exercise to violate the law. But providing preventive health services has nothing to do with religious “exercise,” i.e., rituals. Further, because the administration’s accommodation doesn’t compel objecting employers to do anything, there is no “substantial” burden. Even substantial burdens are permitted if the state has a compelling interest – and here there are several, including an interest in women’s health and privacy, maternal and child health, and ending gender discrimination in health insurance coverage.
Moreover, the lawsuits brought by the Becket Fund and the Alliance Defense Fund are premature, and will very likely be dismissed until a new rule is completed. Separately, the claims brought by the state Attorneys General on behalf of several plaintiffs allege that the policy “compels Plaintiffs to subsidize” coverage. But because the policy is revenue neutral for insurers, there is no subsidy, and therefore no injury.
All insurance is a bet against future costs. Contraception coverage is revenue-neutral, if not a cost saver, because it prevents unintended pregnancies and improves maternal and child health. That’s why the National Business Group on Health, in a steely-eyed business analysis for insurers by a PricewaterhouseCoopers actuary, recommended in 2007 that insurers provide contraception coverage free of “cost sharing” (i.e., no co-pays). Over a decade ago, Congress required plans in the Federal Employees Health Benefits (FEHB) program to cover all FDA-approved contraceptive methods. Around the same time, Hawaii prohibited employers from excluding contraceptive services or supplies from health insurance coverage. Neither of these changes raised premiums.
Second, the administration’s accommodation is reasonable. The policy allows religiously objecting institutions to avoid paying for, or communicating about, contraception. The continuing opposition from the Catholic bishops and others reveals how the goalposts just keep moving — now, it isn’t merely paying for contraceptive coverage that is objectionable, but the knowledge an employee might have access to birth control despite the disapproval of her employer.
This complaint ignores the practical realities of the insurance marketplace. Catholic health insurers have provided or arranged contraceptive coverage for years. Catholics for Choice found that half of Catholic managed care plans provide contraceptive coverage, many by using another insurer or administrator to handle payments.
Moreover, many Catholic health plans participate in Medicaid, a federal program that requires plans to cover contraception without cost sharing. Sound familiar? Catholic Medicaid plans also work within the rules, with similar arrangements as Catholic commercial plans.
Indeed, Catholic health plans voluntarily entered the Medicaid program in droves, with full knowledge that contraception coverage is required by federal law. Despite repeated threats that institutions will now drop coverage, Catholic insurers did not deem Medicaid tainted; instead, they devised workarounds strikingly similar to those proposed by the administration.
A workable solution is also clearly possible for self-insured plans, if Congress would only stop hyperventilating. There is simply no reason that religiously-affiliated organizations should have any more difficulty with this new policy than Catholic insurers had with Medicaid. And there is no reason Congress should entertain more overheated rhetoric on the issue given opponents’ evident lack of either a valid legal claim or any arguments grounded in practical reality.             
MacCleery is the government relations director for the Center for Reproductive Rights.


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