Symposium: The contraceptives coverage controversy — what’s old is new again

The following contribution to our contraceptive mandate symposium comes from B. Jessie Hill, professor of law at Case Western Reserve University School of Law.

Watching the recent controversy over insurance coverage for contraceptives, feminists may feel like they are in a time warp. Within the domain of reproductive rights, abortion remains highly contested territory, but we might have thought that contraception – which is practiced by the overwhelming majority of sexually active women of childbearing age – was widely accepted as an essential part of women’s health care. We would be wrong.

The passage of Obamacare thus seems to have awakened a sleeping giant of controversy over contraception and reproductive health. Yet, the fight that has finally reached the Supreme Court – here, over whether for-profit businesses claiming religious scruples are entitled to exemptions from the Affordable Care Act’s mandate to provide insurance coverage for all contraceptive drugs and devices –has been a long time coming. It has a history, to be sure, but one that is much more recent than the history of the struggle for sexual freedom and equality that preoccupied the women’s movement in the latter part of the twentieth century. This particular history begins with a law review article.

In 1998, Sylvia Law, a professor at New York University School of Law, published an article in the Washington Law Review entitled Sex Discrimination and Insurance for Contraception. In that article, she observed that, although unintended pregnancy is a problem that profoundly affects the medical, social, and economic well-being of American women, most private insurance plans did not cover prescription contraceptives. She further noted that the lack of contraceptive coverage accounted for a large proportion of the disparity between women’s and men’s out-of-pocket health care spending. (The statistic cited in Law’s article is that women spent sixty-eight percent more than men in out-of-pocket health care costs.) Law then argued that the failure of employers to cover contraception while providing otherwise comprehensive prescription drug coverage constituted illegal sex discrimination in violation of Title VII.

Not long after Law’s article appeared, the Equal Employment Opportunity Commission (EEOC) reached a similar conclusion. In December 2000, it decided that two employers ran afoul of the Pregnancy Discrimination Act, which is part of Title VII, by excluding contraceptives from their insurance plans. It ruled that those employers must cover “the full range of” contraceptives “to the same extent, and on the same terms, that they cover the expenses of [other] types of drugs, devices, and preventive care.” A spate of lawsuits against employers followed, resulting in a mixed bag of wins and losses. At the same time, the contraceptive equity movement was gaining steam, resulting in a number of state laws that required insurance coverage of contraceptives on the same terms as other prescription drugs. Indeed, between 1998 and 2009, twenty-six states adopted such laws.

None of the published decisions on the contraceptive coverage issue involved employers who raised religiously based objections to contraceptives. Of course, litigation is usually a piecemeal process, and the lawyers bringing the first cases under a novel legal theory will often try to avoid those that may have complicating factors, so it is not surprising that the issue of accommodating employers’ religious objections did not arise. Still, the question was lurking in the background, as battles arose in state legislatures over whether, and to what extent, the contraceptive equity laws would contain protections for religious objectors. In the end, a substantial minority of states (eight of the twenty-six) adopted coverage requirements with no religious exemption at all, and only two states explicitly excepted emergency contraception such as Plan B and ella, the drugs to which Hobby Lobby and Conestoga Wood Specialties object.

Some left-leaning states, such as California and New York, had adopted contraceptive equity laws containing exemptions for religious organizations that uncannily resembled the one found in the original HHS contraceptives coverage rule, adopted several years later. When those exemptions were later tested in court by Catholic Charities, which claimed that its religious free exercise rights under those respective state constitutions were being infringed, the New York and California courts handily rejected those claims, applying the doctrinal free exercise framework from Employment Division v. Smith to the state constitutional claims.

At the same time, the movement for contraceptives coverage was playing out on the federal level. In 1997, the Equity in Prescription Insurance and Contraceptive Coverage (EPICC) Act was first introduced in Congress. This law would have amended ERISA (the Employee Retirement Income Security Act, which regulates employee benefits plans) to require that most health insurance plans cover prescription contraceptives on the same terms as other prescription drugs. EPICC was introduced again in 1999, 2001, and 2005, but, despite some measure of bipartisan support, it never passed. Though it may not be possible to determine precisely why any piece of legislation fails to pass, it seems clear that disagreement over the scope of a possible religious employer exemption was one significant factor. (The EPICC Act itself contained no explicit exception for religious employers, although the exemption of “church plans” from ERISA’s coverage would have excluded a narrow class of religious entities from the EPICC requirements.) However, although EPICC advocates lost the legislative battle, they ultimately won the war: when the Affordable Care Act was passed, requiring coverage of preventive health services, a report published by the Institute of Medicine urged that contraceptives must be included, and the initial HHS Rule requiring such coverage parroted the narrow religious exemption adopted in New York and California.

Given the Title VII framework for the early contraceptive equity movement, it seems clear that the initial efforts to ensure widespread contraceptives coverage were grounded in the struggle for women’s equality. But they also raised less politically salient, but still highly contested, questions about the meaning of health and the scope of medically necessary and appropriate health care. Indeed, this issue has long lurked within the abortion debate, as states have simultaneous regulated abortion as a health care procedure while declining to fund or otherwise support abortion through Medicaid. Ultimately, every decision to fund or not fund a medical intervention requires a judgment about what is “necessary” and “appropriate” – not just physically and functionally but also emotionally and socially.  Underlying the government’s contraceptives mandate is a judgment that maintaining control of one’s reproductive life is a basic medical need and that prescription contraceptives are a morally and socially appropriate means of meeting that need. Those who religiously object to such coverage apparently hold the opposite view, at least with respect to certain forms of contraception.

Yet, while the political and cultural conflicts over the definition of health care are nothing new, the Affordable Care Act has brought those issues to the foreground because of its political salience and its creation of an increased role for the federal government in health care decision-making. The American health care system has long been characterized by its decentralized nature: decisions about medical necessity and medical appropriateness have traditionally been made by individual physicians and insurers. By contrast, the paradigm shift begun with the passage of Obamacare has meant a larger role for the federal government in not just financing but also defining essential health care. And defining the scope of appropriate and necessary health care is a politically, socially, and culturally fraught issue. The combination of almost all of the “culture war” issues — religious rights, reproductive rights, the role of government in individuals’ lives, and corporate personhood – in Hobby Lobby and Conestoga Wood Specialties makes this case into a kind of perfect crystallization of our current cultural and political anxieties. But as the history above demonstrates, this fight was also a long time in the making.  Rather than being simply a product of the very recent enactment of Obamacare, Hobby Lobby and Conestoga Wood Specialties also reflect deep-seated and long-festering disagreements over the meaning of both health care and gender equality.