How did this all start?
The health reform law requires that insurance companies cover preventive services for women without any co-pay beginning this summer. It did not, however, specify what services to cover — that was left to the Obama administration. With guidance from the Institute of Medicine on the issue, Health and Human Services published a regulation on Aug. 1, 2011 that included birth control as part of the preventive package. That regulation also had a conscience clause, which allows religious employers who object to birth control — and also primarily employ those of their own religion — to be exempt from the requirement. That would allow churches to opt out of the new requirement.
What’s the fight about now?
Some religious leaders say that the exemption wasn’t wide enough: That the Obama administration should allow all faith-based employers regardless of who they employ, to opt out of the new requirement if they object to contraceptives. This wider definition would exempt, among others, Catholic hospitals. The United States Conference of Catholic Bishops has lobbied aggressively for this wider conscience clause, as have a number of prominent Catholics who supported the health reform law. But in final regulations last month, the Obama administration did not expand the exemption.
Let’s say the Obama administration had expanded the conscience clause. Would that allow Catholic hospitals not to provide birth control to their patients?
No, it would not. This regulation only applies to the health insurance that a hospital, charity or other employer provides for its employees. It does not regulate the care that a Catholic charity provides to its patients. As Health and Human Services Secretary Kathleen Sebelius wrote recently in a USA Today op-ed, “our rule has no effect on the long-standing conscience clause protections for providers, which allow a Catholic doctor, for example, to refuse to write a prescription for contraception.”
What happens next?
Two Catholic universities have already filed lawsuits challenging the mandated coverage of contraceptives as a violation of religious freedoms protected under the First Amendment. The Catholic bishops are also looking to file a similar challenge, and some observers expect these challenges could wind their way up to the Supreme Court.
The new rule is starting to play a political role, too, in the 2012 election. Republican candidates have come out against the contraceptive requirement. Former House Speaker Newt Gingrich blasted it as “a direct assault of freedom of religion.” The Obama campaign and its allies have repeatedly defended the new requirement, attacking the Republican field as anti-contraceptives.
How have contraceptive mandates been handled previously?
Twenty-eight states currently require insurance plans to cover contraceptives, although two exclude emergency contraceptives from that mandate.
Nine states do not have conscience clause. Four states have what the Guttmacher Institute describes as “narrow” exemptions, similar to the federal one, which allows churches and other institutions that primarily employ those of their own religion to opt out. Seven states have “broader” exemptions that cover other religious institutions, but not hospitals. Then eight states have “expansive” conscience clauses that allow at least some hospitals not to provide contraceptive coverage.
What about if you get health care through your employer?
Approximately 90 percent of employer-based insurance plans cover contraceptives, according to the Guttmacher Institute, although many may charge co-pays for birth control, which the health reform law will eliminate.