The House Energy and Commerce Subcommittee on Health held a contentious debate on November 2, 2011, that focused on requiring contraception coverage without co-pays under the Affordable Care Act (PL 111-148) and protests on behalf of religious employers who believe this mandate affronts their moral convictions about such services. These groups, propped up by House Republican leaders, are putting pressure on the White House to expand an already existing exemption to the preventative care mandate, which excuses certain religious non-profit organizations from providing preventative services, including contraception coverage, in their health insurance plans.[1] The expansion of the current exemption, termed the Respect for Rights of Conscience Act (HR 1179), would allow them to cut off coverage of birth control without co-pays to millions of women who receive coverage or care through religiously affiliated workplaces, universities, and similar non-profits, including those who are associated with certain organizations but who do not share their religious beliefs.[2]

 

Any expansion of the exemption currently in place would further contradict the Institute of Medicine’s recommendation that health insurance plans cover all FDA-approved contraceptive methods. The U.S. Department of Health and Human Services (HHS) agreed to follow through with this recommendation on August 1, 2011, buoying women’s and reproductive rights organizations with the federal government’s acknowledgement that contraception is an essential facet of preventative care, along with annual well-woman physicals, screening for the virus that causes cervical cancer, counseling on domestic violence, and other lifesaving measures, all to be provided through private insurance without added co-pays.[3] Health and Human Services Secretary Kathleen Sebelius affirmed, “These historic guidelines are based on science and existing (medical) literature and will help ensure women get the preventive health benefits they need.”[4]

 

On November 2, committee members, reproductive health proponents, and representatives from dissenting Catholic groups debated a possible extension of the exemption provision over several heated hours. As Jon O’Brien, president of Catholics for Choice, testified, the “United States Conference of Catholic Bishops and other conservative Catholic organizations are now attempting to impose their personal beliefs on all people by seeking special protection for their ‘conscience rights.’ They claim to represent all Catholics when, in truth, theirs is the minority view.”[5] O’Brien is backed by data showing that contraceptive use is nearly universal among women of reproductive age in the United States. A Kaiser Health Tracking Poll recently found that two-thirds of Americans agreed with the HHS contraception coverage mandate. Furthermore, polling by Hart Research Associates for Planned Parenthood revealed that 77 percent of Catholic women and 72 percent of Republican women voters support the decision.[6][7]

 

Overwhelming support of birth control coverage without cost sharing is not surprising, given that 99 percent of all women, including 98 percent of Catholic women, who have ever had sexual intercourse have used some method of birth control. In addition, 34 percent of women have struggled with the cost of family planning methods at some point, and 58 percent of women who use birth control do so for reasons other than preventing pregnancy.[8][9] Testimony at the hearing by Dr. Mark Hathaway, director of Obstetrics and Gynecology Outreach Services for Women’s and Infants’ Services at the Washington Hospital Center, focused on the essential nature of affordable, accessible birth control as part of a broad spectrum of preventative health measures. His perspective, based on years of experience serving women in a reproductive health capacity, underscores the fact that expanding an already unnecessary exemption would be a grave mistake.[10]

 

That “conscience rights” of employers would trump the rights of patients is enraging women’s health advocates across the nation. Specifically, the vague language of the legislation, proposed by Representative Jeff Fortenberry (R-NE), portends innumerable future problems. According to Fortenberry, religious groups could “decline coverage of specific items and services that are contrary to the religious beliefs of the sponsor, issuer or other entity offering the plan—or the purchaser or beneficiary.”[11] Representative Tammy Baldwin (D-WI) pointed out the glaring slippery-slope nature of a loose but potentially massive-scale withholding of critical reproductive health services. If the exemption extension is passed, what would prevent employers from refusing to cover costs for other services the Catholic Church and other religious groups have taken issue with in the past—such as blood transfusions, HIV/AIDS related care, and services for lesbian, gay, bisexual, and transgender communities—that are already inadequate?[12]

 

Moreover, legal experts, including the National Women’s Law Center, are disturbed by the initial exemption to the federal health reform law as well as by HR 1179. They note that, legally, requiring employers—including religious employers—to cover contraceptives is nothing new. Since 1998, 28 states have created policies or laws requiring coverage of contraceptives for individuals whose policies cover other prescription drugs. Federal civil rights law, Title VII of the Civil Rights Act of 1964, also requires some religious employers to cover birth control. The legal basis of the Fortenberry expansion is challenged further by its inherent sex discrimination. The Equal Employment Opportunity Commission ruled, in 2000, that it is sex discrimination for employer-sponsored health insurance plans that cover preventative services and drugs not to include birth control. Under Section 1557(a) of the Affordable Care Act, it is illegal for any health program that receives federal funds to discriminate on the basis of sex. The further expansion of the exemption, therefore, would also violate current law.[13]

 

“The Obama administration is under intense pressure to give even more ground to religious groups that have claimed infringement on their ‘religious liberty’ but are seeking to have their beliefs bind all Americans’ health insurance coverage. These groups do not support access to contraception and will not do so no matter the exemption made,” comments Jen Heitel Yakush, public policy director for the Sexuality Information and Education Council of the United States. “Uncompromised access to affordable birth control for women of all backgrounds and faiths makes sense and is supported by the medical community and the vast majority of American women who have used birth control. Arbitrary coverage restrictions by conservative politicians and religious groups out of touch with the needs of millions of American women and their families is both poor and harmful policy making. The president should stick to his promises and not succumb to the Bishops’ agenda.”

 

  

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