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.
Laws on birth-control coverage vary greatly by state.
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.
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