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The Danger of “Contraceptive Equity” Laws

 

By Alex Chan

AUL 2006 Summer Fellow 

 

Half of the states in America have capitulated to the abortion lobby’s demand for so-called “contraceptive equity” laws. These laws force employers and insurers providing employees with prescription drug coverage to cover contraceptives as well. Though titled creatively, contraceptive equity laws lack any of the equity claimed in its moniker. These laws present three grave dangers that must be of concern to all.

 

First, contraceptive equity laws typically prevent employers and insurers possessing ethical, religious, and moral objections to contraception from exercising their rights of conscience against contraceptive use. These laws mandate that employers and insurers with convictions against contraceptive use violate their consciences or beliefs. Though most contraceptive equity laws offer an exemption for organizations dedicated to inculcating religious values or beliefs (e.g. churches), many of these laws do not provide the same protection for religiously-affiliated organizations that serve the general public. Some contraceptive equity laws force religiously-affiliated organizations to either surrender their conscientious objections to contraception or serve only people of their own faith.1  For example, Catholic-run hospitals would have to either provide employees with contraceptives or only treat Catholics. Such a result is patently absurd considering the mission of Catholic-run hospitals includes caring for and serving all people in need of care. Providing an exemption for churches while not providing the same protection for organizations affiliated with churches represents nothing more than an attempt by the government to define religion through the mechanism of contraceptive equity laws.2

 

These narrow exemptions also preclude employers and insurers concerned with the health-related side effects of contraceptive use (such as an increased risk of breast cancer)3  on employees from exercising their rights of conscience.

 

Second, contraceptive equity laws will “only exacerbate high health insurance costs.” 4 Kate Sullivan, Director of Health Care Policy for the U.S. Chamber of Commerce, believes further intervention by the government into health plans offered by employers will make coverage more expensive for employees5  and reduce the number of employees who could receive health insurance.6  Some large employers and well-financed church-affiliated organizations can avoid the entire fiscal strain of contraceptive equity laws by switching from insured to self-funded employee benefit plans.7  However, this option is often unrealistic from a financial standpoint for smaller and mid-sized employers, so they and their employees remain vulnerable to the economic consequences of contraceptive equity laws.8

 

Third, requiring employers and insurers to cover contraceptives regardless of their moral and financial dilemmas opens the door for laws requiring employers and insurers to provide coverage for abortion.9  The abortion lobby will likely use the same rationalizations for contraceptive equity laws to justify mandated insurance coverage of abortion. Proponents of contraceptive equity laws believe abortion, like contraception, is a key and vital healthcare service.10  Supporters of contraceptive equity laws will likely claim women need abortion, just as much as they need contraception, to deal with the social and economic consequences of unplanned pregnancies. The abortion lobby used this strategy when it first sought to create a privacy right to contraception in Griswold v. Connecticut,11  and used its victory in Griswold to justify a right to abortion in Roe v. Wade.12 

 

 

The History of Contraceptive Equity Laws 

 

The contraceptive equity movement gained momentum after the U.S. Food and Drug Administration (FDA) approved Viagra, a drug primarily prescribed to treat male impotence, for use in 1998. When employers began including Viagra as part of their insurance plans, the abortion lobby charged them with treating women inequitably for covering a drug used solely by men while neglecting to provide coverage for contraceptives (used solely by women).13

 

Maryland passed the first contraceptive equity law in the country in 1998 and nine states followed suit the next year. Also in 1998, Congress included as part of its 1999 fiscal year (FY) omnibus consolidated and emergency appropriations bill a requirement that all Federal Employee Health Benefit (FEHB) plans providing coverage for prescription drugs cover contraceptives as well.14  Congress has renewed this requirement each year.15

 

In 2000, the Equal Employment Opportunity Commission (EEOC) issued a non-binding opinion finding reasonable cause to believe that the exclusion of prescription coverage for contraceptives from the health insurance plans of two employers constituted sex discrimination under Title VII of the Civil Rights Act.16  The specific part of the Civil Rights Act that the EEOC accused the employers of violating was the Pregnancy Discrimination Act (PDA).17  The PDA prohibits discrimination against women based on pregnancy, childbirth, or related medical conditions, including health insurers covering expenses related to other medical conditions without covering pregnancy-related expenses.18 Since the employers covered prescription drugs or devices to prevent and control the occurrence of future medical conditions, the EEOC reasoned that employers needed to cover contraceptives as well because the drugs control and prevent the occurrence of a pregnancy. In effect, the EEOC equated pregnancy to harmful medical conditions, such as high blood pressure, elevated cholesterol levels, and tooth decay, and likened contraceptives to beneficial preventive drugs, such as vaccinations.19

 

Several federal district courts agreed with the EEOC’s conclusion that employers needed to cover contraceptives in their employee insurance plans to avoid violating the PDA. In Erickson v. Bartell Drug Co., 20 the U.S. District Court of Western Washington became the first federal court21  to hold an employer responsible for sex discrimination under the PDA for providing its employees with prescription drug coverage while excluding contraceptive coverage from its employee health plan. Like the 2000 EEOC opinion, Erickson rejected the distinction between pregnancy prevention and prevention of illnesses and diseases.22  While Erickson conceded pregnancy is natural and not considered an illness or disease, it deemed this concession irrelevant because not all women desire pregnancy.23  Erickson found that contraceptives helped women avoid the adverse physical, social, and economic consequences of an unintended pregnancy.24  Federal district courts in Nebraska25  and Eastern Missouri26  came to the same conclusion as the Erickson court. However, federal district courts in North Texas27  and Southern Illinois28  explicitly rejected the idea that employers violated the PDA for not providing insurance coverage for contraceptives.

 

Another strategy of the abortion lobby has been to limit the effectiveness of exemption clauses intended to protect the rights of conscience of employers and insurers with moral, ethical, and religious objections to contraceptive use by excusing them from the requirements of the contraceptive equity laws. Pro-abortion state legislatures have constructed contraceptive equity laws with narrow exemption clauses that exclude most employers and insurers with objections to contraceptives from exercising their rights of conscience. For example, the California legislature passed a contraceptive equity law in 2000 with an exemption clause only exercisable by employers satisfying four conditions: (a) the inculcation of religious values is the purpose of the entity; b) the entity primarily employs people who share its religious tenets; c) the entity serves primarily persons who share its religious tenets; and d) the entity is a nonprofit organization pursuant to Section 6033(a)(2)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.29

 

This exemption is problematic because it eliminates the ability of religious organizations that serve people of all faith (e.g. Catholic Charities agencies and Catholic-owned hospitals) and do not engage in religious education or primarily admit religious students (e.g. most inner-city Catholic schools) from exercising their rights of conscience against California’s contraceptive equity law.30  The impact of such restrictive exemption clauses on private employers with moral, ethical, and religious objections to contraceptive use must not be overlooked either. Seven states have passed contraceptive equity laws with exemption clauses similarly narrow as California’s.

 

Despite the fact that these narrow exemption clauses strip many employers and insurers of their rights to exercise their rights of conscience against contraceptives, several state courts have accommodated this pro-abortion strategy. In Catholic Charities of Sacramento, Inc. v. Superior Court, the California Supreme Court upheld the California contraceptive equity law against a challenge from Catholic Charities of Sacramento that it violated the Free Establishment and Free Exercise Clauses of the United States and California Constitutions.31  The Court found that the contraceptive equity law’s narrow exemption clause did not burden Catholic Charities because Catholic Charities could avoid having to prescribe contraceptives to its employees by not providing its employees with insurance coverage for any prescription drugs.32 However, this suggestion by the California Supreme Court leaves Catholic Charities in a dilemma between providing employees with basic health care or violating its moral tenets by prescribing contraceptives. Religious organizations not meeting the requirements of these narrow exemption clauses become less attractive places to work if they choose not to insure their employees’ prescription drugs. Catholic Charities of Sacramento, Inc. dismissed the moral quandary it imposed on organizations such as Catholic Charities by finding that the California contraceptive equity law served the compelling state interest of eliminating gender discrimination.33  Earlier this year, a New York trial court reached the same result, using much of the same reasoning as Catholic Charities of Sacramento, Inc. 

 

MYTHS AND FACTS

 

Myth: Women need contraceptive equity laws to combat their employers’ gender discrimination because women spend as much as 68 percent more than men in out-of-pocket healthcare costs, due in large part to the cost of prescription contraceptives and the various costs of unintended pregnancies.35

Fact: The abortion lobby has neither established that a significant connection exists between lack of coverage for contraceptives and unintended pregnancies, nor has it proven that the higher healthcare costs are not a result of factors other than differences in plan coverage, such as differing illness or medical service usage levels.36

 

Myth: Women need contraceptive equity laws for health reasons because women without contraception would have 12 to 15 pregnancies37 and face adverse consequences from unintended pregnancies.38

Fact: Women can avoid all of these problems without contraceptive equity laws by not engaging in unplanned sexual activity. Women choosing to engage in sexual activity can still avoid an unintended pregnancy without contraceptive equity laws by using affordable and available non-artificial and non-prescription methods, such as condoms or natural birth control.39

 

Myth: Providing coverage for contraception is analogous to providing coverage for Viagra.40

Fact: Most health plans pay for Viagra only when a man seeks it to address impotence rather than to enhance sexual performance.40 When a male utilizes Viagra in this context, he is using it to treat infertility, a medical disorder he possesses. On the other hand, a woman uses contraceptives solely to prevent a pregnancy, a completely natural condition. Pro-life legislators should keep in mind that the Erickson court rejected the distinction between treatment and preventative drugs and between medical disorders, such as infertility, and pregnancy.42

 

Myth: Contraceptive equity laws are cost-effective because they save employers the costs resulting from their employees’ unintended pregnancies.43

Fact: The abortion lobby relies on an assumption that employees not using contraceptives because of the costs will begin using contraceptives if their states enact contraceptive equity laws. No studies validate this assumption. Instead, rising healthcare costs have reduced the number of employers offering their employees any health benefits and increased the number of employees turning down their employers’ offer of health coverage. Insurance mandates such as contraceptive equity laws will further compromise the ability of employers to offer affordable health plans to their employees.44

 

 

State of the States: Where Are We Now?

 

Federal Regulation: 

Federal law still requires all FEHB plans providing prescription drugs to cover contraceptives. Personal Care’s HMO, OSF HealthPlans, Inc., and carriers with religious objections to covering contraceptives are exempt.45

 

The abortion lobby first introduced the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC) in 1997.46 This federal bill would require all companies covering prescription drugs and outpatient medical services to prescribe contraceptives and outpatient contraceptive services. Pro-abortion Congress members have reintroduced the EPICC in 1999, 2001, and 2005.

 

State Regulation: 

Twenty-six states have enacted contraceptive equity laws: Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, West Virginia, and Wisconsin.

 

 Six of the states without contraceptive equity laws require health maintenance organizations (HMOs) to cover prescription contraceptives or family planning services: Michigan, Minnesota, North Dakota, Ohio, Oklahoma, and Wyoming.

 

Two of the states without contraceptive equity laws require insurers providing prescription drug coverage for individual and small employers to offer contraceptive coverage: Colorado and Kentucky.

 

 

Constitutionality of Contraceptive Equity Laws: 

Federal district courts in Western Washington, Nebraska, and Eastern Missouri have held that the exclusion of contraceptives from an employee health plan including coverage for prescription drugs is a violation of the PDA under Title VII of the Civil Rights Act. District courts in Northern Texas and Southern Illinois have held the opposite result.

 

The California Supreme Court and a New York trial court have held that enactments of contraceptive equity laws with extremely narrow rights of conscience exemptions that exclude many employers and insurers from exercising their moral, ethical, and religious objections to contraception, are not violations of the Free Establishment and Free Exercise Clauses of the United States Constitution’s First Amendment.

 

Public Opinion: 

The Henry J. Kaiser Family Foundation, a liberal non-profit healthcare organization, conducted a 1998 poll47 finding 73% of those polled responded favorably to the idea of contraceptive coverage if it only raised their insurance costs by $5 a month. The same poll found that 78% of privately insured adults favored contraceptive coverage and 71% of the privately insured believe insurers should cover all contraceptive methods, if it only raised their insurance costs by $5 a month.

 

 

What Happened in 2007

 

What To Do in the Future?

 

The abortion lobby exhibited its deftness for framing an issue in its favor by seizing the opportunity to push for contraceptive equity laws upon Viagra’s introduction in 1998. One explanation for the momentum of contraceptive equity laws is that the public generally supports contraception. Along with the 1998 poll conducted by the Kaiser Family Foundation, the pro-abortion lobby hails a nationwide poll conducted last year as further evidence that the public supports women having access to contraception.48 The dissension in the pro-life movement about whether contraceptive use is wrong may also contribute to why the public appears less conflicted about contraceptives than it does about abortion. However, contraceptive equity laws present a different issue than the morality of contraceptive use. What will unite pro-life forces against contraceptive coverage is more discussion about the danger of contraceptive equity laws, specifically the threat of these laws to the rights of conscience of employers and insurers with moral, ethical, and religious objections to contraception. The pro-life movement remains united in the belief that government at the federal and state level ought not to pass legislation that coerces people into violating their consciences. The more united the pro-life movement is, the clearer the message will be to the public about the negative effects of contraceptive equity laws. The less public support for contraceptive equity laws, the easier it will be for state legislators to vote against these laws or support efforts to expand rights of conscience protection in states with existing contraceptive equity laws.

 

Though Congress may never exclude contraceptive coverage from FEHB plans, federal legislation is one way to ensure all state contraceptive equity laws provide broad exemptions for employers and insurers with moral, ethical, and religious objections to contraceptive use. Congress can protect employers and insurers wishing to exercise their rights of conscience by passing an amendment to the Employee Retirement Income Security Act (ERISA),49 requiring all state governments with contraceptive equity laws to include an exemption for employers and insurers.50 Congress must set a broad exemption as the minimum requirement for the states, meaning that states could only pass exemptions more cordial to employers and insurers with conscientious objections to contraceptive use than the federal exemption.  

 

The pro-life presence on the federal level must also ensure that Congress does not pass future incarnations of the EPICC.

 

Because federal and state courts have been less than sympathetic to the concerns of employers and insurers burdened financially and morally by contraceptive equity laws, pro-life state legislators represent the last reliable line of defense against these laws. In addition to defeating any attempts to pass or strengthen a contraceptive equity law, state legislators should consider adopting the following strategies.

 

First, legislators in states with contraceptive equity laws should amend the laws to include broader exemptions for employers and insurers with moral, ethical, and religious objections to contraceptive use. States should consider replicating the language of Missouri’s exemption to its contraceptive equity law.

 

These exemptions read, in pertinent part, “Any health carrier may issue to any person or entity purchasing a health benefit plan, a health benefit plan that excludes coverage for contraceptives if the use or provision of such contraceptives is contrary to the moral, ethical, or religious beliefs or tenets of such person or entity.”51

 

These broad exemptions should be available to insurers as well. State legislators should note that even though several courts have affirmed the constitutionality of contraceptive equity laws with narrow and restrictive exemption clauses, no court has held that an employer could not legally exercise its rights of conscience exemption.

 

Second, state legislators should pass comprehensive healthcare rights of conscience legislation similar to AUL’s model.52 This legislation would encompass the rights of employers and insurers from having to participate in any healthcare program, such as contraceptive use or coverage, to which they conscientiously object. Such a law would provide employers and insurers with moral, ethical, and religious objections to providing contraceptives in states in danger of having a contraceptive equity law enacted, with an automatic exemption. Such a law would also provide employers and insurers with an exemption in states with contraceptive equity laws but without any exemption. 

 

Finally, state legislators should pass legislation that would include contraceptive use in the definition of abortion or redefine abortifacients to include more types of contraceptives. For the 24 states without contraceptive equity laws, this strategy would prevent an activist federal court from using the Erickson holding as its rationale for forcing employers to cover contraceptives because the PDA explicitly does not require an employer to pay for the health benefits for abortion, except where the life of the mother is in jeopardy.53 Employers providing prescription drug coverage, while excluding coverage for contraceptives, would no longer be in violation of the Pregnancy Discrimination Act if the state’s definition of abortion were to include contraceptive use. Changing the definition of abortion to include contraceptives would invalidate state contraceptive equity laws explicitly excluding abortion and emergency contraception from coverage. Another effect flowing from this strategy is that all of the state’s pertinent abortion regulations, such as parental consent54 and waiting periods, will apply to contraception. When Roe is overturned, contraception would be available in the same states that abortion would still be legal. 

 

 

Endnotes

1See Susan J. Stabiles, State Attempts to Define Religion: The Ramifications Of Applying Mandatory Prescription Contraceptiove Coverag Statues To Religious Employers, 28 Harv. J.L. & Pub. Pol'y 741,755-758 (Summer, 2005).

2 See id. at 758-759

3 Oral Contraceptives and Cancer Risk, available at http://www.cancer.gov/cancertopics/factsheet/risk/oral-contraceptives (last updated May 4, 2006) (last visited August 18, 2006)

4 Gerladine Sealy, Erections get Insurance; Why not the Pill?  Women See Progress in Getting Birth Control Covered by health Insurance,  ABC News, June 19, 2002, available at http://absnews.go.com/US/story?id=91538 (last visited Nov. 15, 2007).

5 See Tamar Lewin, Agency Finds Many Health Plans Should Cover Costs, N.Y. Times, December 15, 2000, at A1

6 See Improving Women's Health: Why contraceptive Insurance Coverage matters: Hearing on S. 104 Before the Comm. on Health, Educ.; Labor, and Pensions, 107th Cong. 44 (2001)  (statement of Kate Sullivan)

7 Stabiles, supra at note 1 at 775.

8 Id.

9 See Id. at  765

10 Id. (citing Elena N. Cohen & Jill C. Morrison, Hospital Mergers and the Threat to Women's Reproductive health Services, National WOmen's Law Center, at 2, 5, 6, available at http://www.nwlc.org/pdf/mergca.pdf (June 2001).

11 381 U.S. 479 (1965)

12410 U.S. 113 (1973)

13 Cary Goldberg, Insurance for Viagra Spurs Coverage for Birth Control, N.Y. Times, June 30, 1999, at A1.

14 Pub. L. No. 105-277, 112 Stat 2681-530 at  656 (1998).

15 In 2001, Congress rejected President Bush's proposal to remove contraceptive coverage in every one of his budget proposals.

16 U.S. Equal Employment Opportunity Commission Decision (December 14, 2000), available at http:// www.eeoce.gov/policy/docs/decision-contraception.html (last modified December 14, 2000) (last visited (August 18, 2006)
17 42 U.S.C  2000e(k) (2006).

18 Id.

19 EEOC Decision, supra at note 16 ('It is widely recognized in the medical community that pregnancy is a medical condition that poses risks to and consequences for, a woman.") ("It is appropriate, for example, to compare Respondents' coverage of vaccinations or physical examinations to that of contraceptive, because both serve the same purposes.").

20 141 F. Supp. 2d 1266 (W.D.) Wa. 2001).

21 Id. at 1268 ("the parties'....raise an issue of first impression in the federal courts whether the selective exclusion of prescription contraceptives from defendant's generally comprehensive prescription plan constitutes discrimination on the basis of sex.").

22 Id. at 1273.

23 Id.

24 Id.

25. in re Union Pac. R.R. Empl. Practices Litig., 378 F. Supp. 2d 1139 (D. N.E. 2005)

26 Cooley V. DaimlerChrysler Corp., 281 F. Supp.2d 979 (E.D. Mo. 2003), reconsideration denied, Cooley v. DaimlerChrysler Corp., 281 F.  Supp. 2d 979 (E.D Mo2003).

27 Alexander v. American Airlines, Inc., 2002 U.S. Dist. Lexis 7089 (N.D. Tex. April 22, 2002).

28 Cummins v. State of Illinois, Case No. 2002-CV-4201-JPG (S.D. I11. August 30, 2005.)

29 Cal. Health & Saf. Code  1367.25 (2006).

30 Edward T. Mechmann, Illusion or Protection? Free exercise Rights and laws mandating Insurance Coverage of contraception, 41 Catholic Law. 145, 147 (Fall , 2001).

31 85 P. 3d 67 (Cal. 2004).

32 See Id. at 92.

33 See Id.

34 Catholic Charities of Diocese of Albany v. Serio, 808 N.Y. S 2d 447 (2006) (lexis pagination subject to change pending release of final published version).

35 See Catholic Charities of Sacramento, Inc., 85 P. 3d. at 74, 92.

36 Stabiles, supra at note 1, at 769-770.

37 Insurance coverag for Contraception: A Proven Way to Protect and Promote Women's Health avaiable at http://www..prochoiceamerica.org/issue/birth_control/insurance-coverage/insurance-coverage-contraception.html (last updated May 1, 2006) (last visited August 18, 2006).
38 Unintended Pregnancies (last visited July 13, 2006). Alleged adverse consequences include women being more likely to postpone or not obtain prenatal care and to continue to use substances such as tobacco and alcohol, domestic violence and divorce being three times more likely and unwanted children being far more likely to have encounters with the criminal justice system as they grow up.

39 Stabiles, supra at note 1 at 772

40 See Goldberg, supra at note 13.

41 AMy Goldstein, Viagra's Success Fuels Gender Bias Debate, Wash. Post, May 20, 1998, at A1.

42 Erickson, 141 F. Supp. 2d at 1273.

43 Cynthia Dailard, The Cost of Contraceptives Insurance Coverage, 6 Guttmacher report on Public Policy 1, 12-13 (March, 2003) available at http:/www.guttmacher.org/pubs/tgr/06/1/gr060112.pdf (last visited Nov. 15, 2007).

44 Brief for Union Pacific Railroad Company, et al. as Amici Curiae SUpporting Defendants-Appellants, Standridge V. Union Pac. R.R. Co., No. 06-1706 (8th Cir. May 15, 2006.)

45 Pub. L. No. 109-115, 119 Stat. 2503 at  833 (a) -(b) (2006).

46 S. 743, 105th Cong. (1st Sess. 1997); S. 766, 105th Cong. (1st Sess. 1997); H.R> 2174, 105th Cong. (1st Sess. 1997) 

47 Press Release, Kaiser Family Foundation, American Support Requiring Insurers To Cover Contraceptives, Even If Premiums Rise. More Women and Men Say Contraceptives Should Be Covered Than Say Viagra (June 19, 1998) available at http;/www.kaiserfamilyfoundation.org/womenshealth/1404-insurance.cfm) (last visited July 13, 2006.)

48 American Viewpoint, available at http;/www.nfprha.org/uploads/PollResultsForReleasetopressFINAL.pdf (last visited July 13, 2006)

49 26 U.S.C 1001-1461 (2006). ERISA preempts certain state laws regulating employee benefitd plans.

50 Mechmann, supra at note 30, at 166.

51 Mo. Rev. Stat.  376.119 (2006).

52 (This endnote would be in reference to our AUL Model Legislation for Rights of Conscience this year).

53 42 U.S.C 2000e(k) ("This subsection shall not require and employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term....").

54 US Congressman Ernest Istook attempted to include an amendment to the 1998 House Appropriations Bill for Labor, Health and Human Services, and Education, that would have required federally funded Title X health clinics to give written notice to parents or guardians of underage children five business days in advance of providing a contraceptive drugs or devices to a child. Though the House approved this amendment, it also approved a subsequent substitute Amendment that essentially nullified the effect of the Istook Amendment by stripping it of the parental notice requirement for contraceptive drugs or devices.