Different states’ contraceptive rules leave employers room to maneuver
By N.C. Aizenman and Lena H. Sun,
When California adopted a law in 1999 requiring health insurance plans to include birth control if they cover prescription drugs, Catholic Charities of Sacramento was determined to fight.
But after a five-year legal battle ended in defeat at the state Supreme Court, the charity found a more effective solution: It chose to self-insure, an arrangement that only the federal government has authority to regulate, and it left birth control out of its plan.
So officials at the charity have been all the more bitter over the Obama administration’s recent decision to issue a federal rule that will soon require most employers who offer workers insurance to cover birth control.
Their experience points to a complicated reality underlying the controversy over the federal contraception coverage rule.
On one hand, as administration officials have repeatedly stressed, 28 states already have laws on their books similar to the rule the administration has imposed.
Nearly a third of those states don’t offer an exemption even for churches — let alone an exception for the church-affiliated charities, universities, hospitals and other employers that are pushing to be left free from the federal rule. (And even in states that have no birth control coverage requirements, some Catholic-affiliated institutions have chosen to offer it voluntarily — including Georgetown University in the District.)
Yet many religiously affiliated employers in the states with coverage mandates have found ways to keep contraception out of their health plans. They can self-insure, putting themselves outside the reach of state regulation. But they can also benefit from exemptions or vague language in their state’s laws, or from indifferent enforcement by authorities.
Those avenues would almost certainly be closed by the new federal rule, which, beginning Aug. 1, will require new health plans to not only cover all Food and Drug Administration-approved forms of contraception and sterilization but also to do so without out-of-pocket charges to employees.
No wonder then that the outcry has been so much greater over the federal rule than over state laws, said Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, a public interest law firm that is representing employers in three separate legal challenges to the federal rule.
“Even if there’s not a written statutory exemption to state laws, there are all these other ways that religious groups are allowed to opt out,” she said. “But with the federal mandate there are no options. That’s why these religious groups are in such a bind.”
Eight of the states that require contraceptive coverage appear to exempt virtually any religious employer — and in cases such as Illinois and Missouri, even nonreligious employers — with moral objections to providing birth control coverage, according to an analysis by the Guttmacher Institute, a research organization specializing in reproductive issues.
For instance, Maryland’s 1998 law, which was the first of the 28, holds that “religious organizations” can request that their insurance company leave contraception out of a health plan if the coverage conflicts with the organization’s beliefs. The term “religious organization” is not defined, suggesting a broad range.
This includes Holy Cross Hospital in Silver Spring, which does not cover contraception in either of the two plans it offers its 2,500 full-time employees — a self-insured plan, as well as one with Kaiser Permanente that is governed by state law — according to a spokeswoman, Yolanda Gaskins.
Even in the eight states that require coverage with no religious exemptions of any kind, at least some employers have been able to tailor plans to meet their views of what is appropriate.
Take the case of Colorado Christian University, a private evangelical Christian college based in Lakewood that is mounting one of the legal challenges to the federal rule. Last fall officials there instructed their insurer, Kaiser Permanente, to remove coverage of the emergency contraceptive drug known as Ella from its HMO plans.
The Colorado regulation requires coverage of emergency contraception. University counsel Steve Miller said the school acted within the law, because Colorado Christian views Ella as an abortion-causing drug, and state regulations exclude drugs that cause “medical abortions” from the coverage requirement.
However, Ella is not named in the regulation, and it works differently from abortion drugs such as RU-486 that are specifically cited.
“If Ella is prescribed as an emergency contraception by a physician, then it would be covered by our legislation,” said Marianne Goodland, public information officer for the state Division of Insurance.
But unless an employee at the school objects, the matter is likely to end with the university’s decision. “I guess if someone were to call us up — either an insurer or a consumer — and ask, ‘Is this covered?,’ we’d have to have the conversation at that time,” Goodland said. “But it hasn’t come up.”
Other states often put the onus on insurance companies to determine whether an employer’s request to cease coverage of a particular service is permissible under state law — only weighing in if they receive a complaint.
Even when workers do contest their employer’s decision to eliminate birth control coverage, there is no guarantee of a straightforward resolution.
In North Carolina, eight employees have been contesting Belmont Abbey College’s health policy for more than four years.
When the school, a Catholic liberal arts college in Belmont that is affiliated with a Benedictine monastery, announced plans to eliminate birth control coverage from its health plan in late 2007, one of the employees immediately complained to the state Department of Insurance.
Faced with competing arguments over whether the college qualified as a “religious employer” under the test set out by North Carolina’s law, Robert Lisson, a deputy commissioner, ultimately declined to make a ruling.
Religious doctrine was “inextricably intertwined in the dispute,” he wrote, and “a state agency is constitutionally prohibited from resolving disputes over ecclesiastical doctrine and religious tenets.”
The employee and others then turned to the Equal Employment Opportunity Commission, or EEOC, an agency of the U.S. government that enforces federal employment discrimination laws.
“I wasn’t personally affected by [the college’s new policy], but we all felt it was against the law and just wrong,” said James Giermanski, who was then a professor of international business at the college. “I really believe this is a personal issue for a woman to decide, because that’s her body. It’s not for some entity to say you cannot have that coverage because we don’t believe in it.”
In 2000 the EEOC’s commissioners issued an influential, general decision finding that employers that cover prescription drugs but fail to include birth control violate protections against sex discrimination in the Civil Rights Act.
The decision spurred many employers to begin offering contraceptive coverage. But it was not legally binding. And federal courts have split over the commission’s legal reasoning.
The Belmont Abbey case has been handled by one of the EEOC’s district-level offices. EEOC proceedings are confidential, but according to both sides, in 2008 the EEOC found that Belmont Abbey was in violation of civil rights law and had also illegally retaliated against several of the employees.
However, rather than suing Belmont Abbey in federal court, the EEOC has pursued a more common approach: seeking to mediate a settlement between the two sides. That process continues.
To Giermanski, who has since retired from the college, the experience illustrates the limitation of state and federal laws, if authorities don’t enforce them and citizens lack the resources to pursue justice on their own.
The lengthy mediation procedure has also been a drain on Belmont Abbey, said the school’s president, Bill Thierfelder.
“It’s just a just a lot of time and energy focused on this process that could be spent on doing other things that would be more directed toward the mission of our college,” said Thierfelder, whose college is also one of those challenging the federal rule in court.
Last week President Obama announced an accommodation for religiously affiliated employers, such as Belmont Abbey. The new option allows employers to keep contraception out of any health plans they purchase, while requiring the insurer to cover it directly for interested employees without charging an additional premium.
But Thierfelder dismisses that alternative as “an accounting gimmick.” The plan is also of no use to groups that self-insure, such as Catholic Charities of Sacramento. In a self-insured plan, employers and insurers are effectively one and the same, noted Kevin Eckery, a spokesman for the diocese to which Catholic Charities of Sacramento belongs.
White House officials have indicated that they are looking for ways to address the issue of self-insurers. For now, though, “the White House’s answer to this is not an answer,” Eckery said. “It’s very frustrating.”