This article is outdated. Please update this article to reflect recent events or newly available information. (November 2012)

A contraceptive mandate is a state or federal regulation or law that requires health insurers, or employers that provide their employees with health insurance, to include contraception in their health insurance plans. Many states in the US have such mandates, and the Obama administration has proposed a federal mandate to apply to all new health insurance plans in all states from August 1, 2012.^[1]

Birth control and unintended pregnancy [edit]

In the United States, contraceptive use saves about $19 billion in direct medical costs each year.^[2]

About half of US pregnancies are unintended.^[2] Highly effective contraceptives, such as intrauterine devices (IUDs), are underused in the United States.^[3] Increasing use of highly effective contraceptives could help meet the goal set forward in Healthy People 2020 to decrease unintended pregnancy by 10% before 2020.^[3] Cost to the user is one factor preventing many US women from using more effective contraceptives.^[3] Making contraceptives available without a copay increases use of highly effective methods, reduces unintended pregnancies, and may be instrumental in achieving the Healthy People 2020 goal.^[3]

Federal contraception mandate [edit]

On January 20, 2012, Health and Human Services' Secretary Kathleen Sebelius announced the mandate requiring that all health plans provide coverage at no cost (including deductibles and co-payments) for all contraceptives approved by the Food and Drug Administration as part of preventive health services for women.^[4] The mandate also required coverage for sterilizations.^[5]

The FDA has approved the following medicines and devices for birth control:^[6]

• Male condom
• Female condom
• Diaphragm with spermicide
• Sponge with spermicide
• Cervical cap with spermicide
• Spermicide alone
• Oral contraceptives (progestin-only) "The Minipill"
• Combined oral contraceptives (extended/continuous use) (estrogen and progestin) "The Pill"
• Patch (estrogen and progestin)
• Vaginal contraceptive ring (estrogen and progestin)
• DMPA shot/injection (progestin)
• Emergency contraceptives “The Morning After Pill”
• Copper IUD
• IUD with Progestin
• Implantable rod (progestin)

The administration allowed a religious exemption. The exemption applies to church organizations themselves, but not to affiliated nonprofit corporations, like hospitals, that do not rely primarily on members of the faith as employees.^[7] An amendment, the Blunt Amendment, was proposed that "would have allowed employers to refuse to include contraception in health care coverage if it violated their religious or moral beliefs,"^[8] but it was voted down 51-48 by the U.S. Senate on March 1, 2012.^[9]

On February 15, 2012, The Boston Globe reported^[10] that the Blunt Amendment had 37 cosponsors, including Sen Scott Brown from Massachusetts.

Regulations were issued on March 16, 2012 which ensure coverage for employees of enterprises controlled by religious institutions which self insure. Regulations were also issued on March 16, 2012 which require coverage for students at institutions controlled by religious organizations which purchase insurance. It is believed by the federal government that it is not possible under current law to require contraceptive coverage for students at institutions controlled by religious organizations which self insure.^[11][12]

PPACA Coverage for contraceptives [edit]

With the exception of churches and houses of worship, the Patient Protection and Affordable Care Act mandates contraceptive coverage for all employers and educational institutions, even though the mandate itself is not included in the wording of the law(s) [1] passed by Congress. The mandate applies to all new health insurance plans effective August 2012. It controversially includes Christian hospitals, Christian charities, Catholic universities, and other enterprises owned or controlled by religious organizations that oppose contraception on doctrinal grounds. Regulations^[13] made under the act rely on the recommendations of the Institute of Medicine, which concluded that birth control is medically necessary "to ensure women's health and well-being."

In February 2012, a major political controversy erupted with candidates for the Republican nomination for President viewing the regulations as a "direct attack on religious liberty".^[14] However, certain aspects of the mandate are not new. In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn't provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today – and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Currently, employers that don't offer prescription coverage or don't offer insurance at all are exempt, because they treat men and women equal, but the new mandate will penalize such actions.

After the EEOC opinion was approved in 2000, reproductive rights groups and employees who wanted birth control access sued employers that refused to comply. The next year, in Erickson v. Bartell Drug Co., a federal court agreed with the EEOC's reasoning. Reproductive rights groups and others used that decision as leverage to force other companies to settle lawsuits and agree to change their insurance plans to include birth control. Some subsequent court decisions echoed Erickson, and some went the other way, but the rule (absent a Supreme Court decision) remained, and over the following decade, the percentage of employer-based plans offering contraceptive coverage tripled to 90 percent.^[15]

The United States Conference of Catholic Bishops has since taken the lead in opposition to the regulations^[16] Cardinal Timothy M. Dolan, the archbishop of New York and president of the United States Conference of Catholic Bishops stated that the provision "represents a challenge and a compromise of our religious liberty".^[17] Other organizations, such as Planned Parenthood, supported the provision.^[18] The Evangelical Lutheran Church in America, The Presbyterian Church (USA), Reform Judaism, the United Methodist Church, and the United Church of Christ all have said they support the Mandate and all offer these products on their health plans.

The regulations issued under the act are also opposed by active Christian Evangelicals.^[19]

The Obama administration proposed changes in response to the criticism. Under the proposed new regulation, birth control medication would be provided by the insurers, without direct involvement by the religious organization. The Catholic Health Association (CHA) accepted this compromise. Although initially more supportive, Sister Carol Keehan, CEO of the CHA, registered opposition in a five-page letter to the U.S. Department of Health and Human Services.^[20] The vice president of Catholic identity and mission at Mount St. Mary's University, Stuart Swetland, said, "It shows [Obama] and the administration are listening to our concerns", but reserved the right to "examine the details". However, the United States Conference of Catholic Bishops continued to oppose the regulation, saying that the regulation still requires Catholics in the insurance industry to violate their consciences.^[18] Catholic opinion is split with a The New York Times/CBS News poll showing 57% support of the regulations among Catholic voters and about the same by non-Catholics.^[21]

On March 16, 2012, regulations were issued which ensure coverage for employees of enterprises controlled by religious institutions that self-insure. Regulations were also issued which require coverage for students at institutions controlled by religious organizations which purchase insurance. It is believed by the federal government that it is not possible under current law to require contraceptive coverage for students at institutions controlled by religious organizations which self-insure.^[11][12]

Reactions [edit]

More Democratic politicians favor these mandates than Republican politicians.^[22] Sen. Barbara Boxer (D-CA) and House Minority Leader Nancy Pelosi favor the Obama policy.^[23]

Rep. Darrell Issa (R-CA) said that Americans are divided on this issue: "While some Americans may not feel that forcing them to pay for contraception are an infringement on their religious beliefs, others consider it to be an assault against their freedom of conscience."^[24] Issa's February 2012 hearing on the matter was criticized for including only men from conservative religious institutions, and no women.^[25]

Framing the issue [edit]

Some people see the matter as primarily one of women's health, such as the National Women's Law Center.^[26] Others see it as a matter of religious freedom.

Certain consumers of mandatory health insurance, such as students matriculated at colleges of further education, have criticized what they perceive to be discrimination in provision or in practice: employer-provided plans that cover University faculty and staff may be subject to legal mandates whereas plans that cover the student body may not. Sandra Fluke was invited to present oral arguments on behalf of certain female student consumers dissatisfied with restrictions attached to registration for undergraduate and graduate attendance at Georgetown University School of Law. No contraceptive mandate applies to private parties entering into an association for commercial gain. Students are only required to purchase the University's plan if they are not covered elsewhere, for example under a family members' (parents, spouse) plan. or are able to demonstrate their ability to self-insure at equivalent policy limits for certain levels of medical care.

Sen. Frank Lautenberg (D-NJ), opposing the Blunt Amendment's limitations on contraception availability, said, "The Republicans want to take us forward to the Dark Ages again... when women were property."^[27]

See also [edit]

• United States House Committee on Oversight and Government Reform (section Hearing on February 16, 2012)
• Rush Limbaugh–Sandra Fluke controversy
• Title X
• Healthy People program

References [edit]