In regulations earlier this month, Health and Human Services settled on a relatively narrow conscience clause that covers faith-based employers who primarily employ people of their own religions, instead of a wider exemption that could have covered employers with workers outside their faith, places like hospitals and universities. Writing in Sunday’s Washington Post, E.J. Dionne wished the administration would have gone with a broader opt-out.
“Speaking as an American liberal who believes that religious pluralism imposes certain obligations on government, I think the Church’s leaders had a right to ask for broader relief from a contraception mandate that would require it to act against its own teachings,” he writes. “The administration should have done more to balance the competing liberty interests here.”
Dionne cites Hawaii as one example of how to handle such an exemption: The state has an expansive conscience clause that allows religious employers to opt out, but also requires insurance companies to provide written notice on where they can find affordable birth control coverage.
Hawaii actually makes for a decently representative case of how states have handled exemptions from mandated contraceptive coverage. Twenty-eight states currently require states to cover contraceptives, although two exclude emergency contraceptives from that mandate.
Four of those 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.
Among those with the wider exemptions, nearly all require the employer to notify the employee of the decision to opt out of birth control coverage. There is one policy point on which Hawaii is a rarity: It is one of just four states that makes access to birth control affordable for those employers who don’t cover it, often by allowing them to purchase a stand-alone plan at a group rate.
A wider conscience clause would have been a political challenge; reproductive health groups lobbied aggressively to ensure that the exemptions to the federal mandate remained narrow. In the states, however, the tendency has been to allow slightly more religious employers to opt out of mandated contraceptive coverage.