Matching the inflammatory rhetoric about health care reform's elimination of cost-sharing for women's contraception, conservative media outlets are currently misrepresenting a preliminary court order in a private company's challenge to this policy. Contrary to the right-wing narrative that crudely oversimplifies the complex legal issues at stake and ignores the need to balance the constitutional rights of employers with those of their female employees, the questions in the case are neither easy nor clear.
When the popular requirement went into effect that most insurance plans -- including employee plans sold to employers -- could no longer charge women co-pays or deductibles for prevention or wellness care, conservative media figures declared a national disaster. On August 1, the Editors of the National Review Online intoned that "[t]his day...is a dark one for religious freedom in the United States." Sean Hannity mirrored this solemnity on Fox News and announced "today is the day that religious freedom in America, in many ways died" (Fox Hannity Show, 8/1/12, via Nexis).
This reaction was unfortunately unsurprising. Despite the fact that many religious believers and institutions and most voters support insurance coverage of contraceptives, birth control has conflicted with the religious concerns of some since the 1960s. Recognizing this, the law provides an exemption from the contraceptive coverage requirement to "a nonprofit church or close church affiliate if it primarily employs and serves persons who share its religious tenets, and the purpose of the institution is the inculcation of religious values." [National Health Law Program, 8/12]
The exemption is similar to those used on the state level, and twenty-eight states currently have contraceptive insurance equity acts. The administration may also accommodate non-exempted non-profit organizations by allowing them to opt-out of the provision of insurance coverage for contraception, but instruct insurance companies to meet the preventive and wellness requirements directly. Nevertheless, claiming that these exemptions and accommodations do not go far enough, a for-profit, secular, Colorado-based company filed a lawsuit alleging it too should be treated like a church and be exempted from offering female employees plans with contraception coverage.
The case is one of first impression. As such, the judge issued a preliminary injunction, temporarily halting this company's compliance with the law until the court could consider the merits of the case. The Heritage Institute's Foundry said the company "demonstrated the strength of the religious liberty challenge to Obamacare." Ed Whelan of the National Review Online said "it's clear that the HHS mandate tramples [religious] protections[.]"
It's not that simple.
The "Contraception Mandate" Is Part of Prevention and Wellness Services Available To Everyone
Under Section 2713 of the Affordable Care Act, prevention and wellness medical care must be offered to all adults and children by all health insurance plans without a co-pay or deductible attached. In order to assist in the definition of what specific medical care qualifies as a prevention and wellness service, the U.S. Department of Health and Human Services looked to doctors and experts. These professionals reported back with evidence-based recommendations, consistent with long-standing prevailing practice.
The recommendations led to a list of prevention and wellness services that most insurance plans are now required to fully cover, pursuant to the health care reform law. Some of this medical care is universal -- insurance companies will no longer be allowed to impose cost-sharing for immunizations for anyone. Some of this medical care, however, is only applicable to a certain demographic. Behavioral assessments are only fully covered for children. Colorectal cancer screening is only fully covered for adults over 50. Certain aneurysm screenings are only fully covered for men. And female birth-control is only fully covered for females. This last service is the only one the Colorado company refuses to include in its insurance plan.
Opponents Of The "Contraception Mandate" Are Pressing A Claim That Has Much Case Law Against It
Since 1878, plaintiffs have challenged generally applicable laws as a burden upon religious conduct. Sometimes they win, but more often they lose. As was noted by Justice Scalia in Employment Division v Smith, the Supreme Court has "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition." Congress sought to overturn Scalia's holding with the Religious Freedom Restoration Act and mandate heightened scrutiny to all free exercise claims. The constitutionality of that law is unsettled, but is currently still on the books and is at issue in the Colorado case.
The court has also not yet considered the potential sex discrimination of denying a service only applicable to women, or the possible infringement upon the religious views and privacy of employees such a refusal would have. These further complicating points were made by 170 law professors in an August 1 letter sent to the President and Congressional leadership. Thus, the Colorado district court issued a preliminary injunction to consider the merits of conflicting constitutional questions in a case that is, contrary to conservative reports, far from "clear":
These arguments pose difficult questions of first impression. Can a corporation exercise religion? Should a closely-held subchapter-s corporation owned and operated by a small group of individuals professing adherence to uniform religious beliefs be treated differently than a publicly held corporation owned and operated by a group of stakeholders with diverse religious beliefs? Is it possible to "pierce the veil" and disregard the corporate form in this context? What is the significance of the pass-through taxation applicable to subchapter-s corporations as it pertains to this analysis? These questions merit more deliberate investigation.
Even if, upon further examination, Plaintiffs are able to demonstrate a substantial burden on their free exercise of religion, however, the government may justify its application of the preventive care coverage mandate by demonstrating that application of that mandate to Plaintiffs is the least restrictive means of furthering a compelling interest. [Hercules v. Sebelius, 7/27/12]