Contraceptive coverage laws remain contentious

The contraceptive mandate stoked the legal fire of religious groups.

Although the government later exempted religious organizations that object on moral grounds and whose employees largely adhere to their beliefs, religiously affiliated institutions were not exempt, such as Catholic hospitals and universities. The religiously affiliated institutions objected to the mandate on the grounds of religious freedom. The pushback from the religious employers sparked a firestorm of political debate.

In response, the Obama administration said in February 2012 that it would modify the requirement to allow Catholic employers to avoid directly providing birth control in their policies. Instead, the proposed compromise required the employer's health insurer to pay for contraceptive services for participants who wanted it, without directly charging either the employee or the religious employer.

Then in March, the Senate voted 51 to 48 against proposed legislation that would have rolled back the compromise requiring third-party insurers to provide the no-cost contraceptive care.

Unappeased by the administration's proposed compromise or the Senate's response to it, Catholic opponents to the contraception mandate brought this battle to the courthouse.

On May 21, 2012, forty-three Catholic groups-including the Archdiocese of New York and the University of Notre Dame-filed a dozen lawsuits in federal courts across the country challenging the provision that required them to provide contraceptive care. Specifically, the groups asked that the courts bar the mandate's application to religious institutions or overturn it altogether.

Notre Dame argued in its lawsuit, "The government . . . cannot justify its decision to force Notre Dame to provide, pay for, and/or facilitate access to these services in violation of its sincerely held religious beliefs." This statement reflects Notre Dame's position that the proposed compromise did not go far enough to insulate Catholic institutions from healthcare services they view as contrary to their religious beliefs.

The issue was politically cast as a matter of women's health versus freedom of religion.

At least 26 states have laws requiring insurers that cover prescription drugs also provide coverage for FDA-approved contraceptives, however, 21 states offer exemptions, usually for religious reasons, for insurers or employers' policies.

This debate is unlikely to end. So long as tension continues between an employee's desire to receive certain healthcare services and her employer's desire not to provide it, the issue will demand attention regardless of the legislative vehicle that seeks to address it.

This column is written for informational purposes only and should not be construed as legal advice.

Christopher S. Williams is a partner in the Litigation group at Calfee, Halter & Griswold LLP.

Alexander B. Reich is an associate in the Litigation group at Calfee, Halter & Griswold LLP