Contraceptive Coverage under the Affordable Care Act
A funny thing happened on the way to the Supreme Court. On March 27, 2014, as the justices donned their robes to hear oral arguments in two lawsuits opposing contraceptive coverage and members of the media readied their cameras, activists rallying to support contraceptive access took over their opposition’s cheer: “Faith! Family! Freedom!” There had been sufficient overlap between the two sides’ messaging from the beginning. In the debate over the Affordable Care Act’s requirement that most women’s health insurance plans include coverage for contraception without copays, there are those who oppose contraception and those who support it. The irony, never more evident than on that frozen March morning on the Supreme Court steps, is that the law’s proponents and opponents both claim to speak for conscience and religious liberty.
One side, led by the United States Conference of Catholic Bishops (USCCB) has been vocal in its attempt to cast contraceptive coverage as an affront to religious liberty—specifically, the liberty of employers (and, even more specifically, of employers like them). Others, meanwhile, firmly believe that contraceptive coverage upholds women’s religious freedom—and that the definition of religious freedom itself is at risk. Which side the Supreme Court justices and the court of public opinion embrace will have enormous implications for everyone. What is at stake in these lawsuits are the health and religious liberty rights of women—whether they receive health insurance through their employers, their spouse’s employer or a parent’s employer.
Before one can even begin to understand the current debate, embodied by the shouting match outside of the Supreme Court, it is important to understand the history of how the contraceptive coverage law came into being, and just how many times the Obama administration poked USCCB and Catholic Health Association-sized holes into that coverage.
The Institute of Medicine (IOM), hardly a radical group, carefully considered the advice of experts to determine which women’s preventive healthcare services should be covered in all health insurance plans without copays.
In December 2009, Sen. Barbara Mikulski, a Catholic from Maryland, heralded the Senate’s passage of her amendment to address women’s health disparities in what would eventually become the Affordable Care Act. It was the first amendment that the Senate considered and passed during the healthcare reform debate, and it included an important provision requiring that the government create, with the help of public health experts, a list of preventive healthcare services that all women’s health insurance plans must cover without copays. As Mikulski said in a press release at the time, her intent was not only to protect women’s health, but also to protect their conscience rights. “Decisions about preventive care and screenings—like mammograms—will be made between a woman and her doctor in a medical office. It will not be made by an insurance company, a member of Congress or by a stranger,” she said. For Mikulski, the person who made these decisions mattered as much as what they were deciding. Indeed, at the time, the list of mandatory services did not even exist.
It was thanks to Mikulski’s amendment that the Institute of Medicine (IOM), hardly a radical group, carefully considered the advice of key medical and sociological experts to determine which women’s preventive healthcare services were so critical to advancing “women’s health and well-being” that they should be covered in all health insurance plans without copays. In July 2011, the IOM released a list of eight services that it recommended for coverage. Among these services were breastfeeding support, domestic violence screening, well-woman visits, HIV screening, cervical cancer testing and other basic care, including coverage for FDA-approved forms of contraception. It was then up to the Department of Health and Human Services (HHS) to decide which of the IOM’s recommen-dations to include in federal rules, and how to go about including them.
What resulted was an arduous lesson in government rulemaking and hardball politics. In August 2011, HHS released its first set of proposed rules to institute the IOM’s recommendations. All eight of the preventive services that IOM had suggested were in these first rules, with one major change: HHS proposed that religious institutions, unlike their secular counterparts, could refuse to include contraception in their workers’ insurance plans. As written, these institutions would include churches, religious orders, dioceses, parish schools and other similar establishments. HHS also announced that it would accept public comments regarding this proposal. It ultimately received 200,000.
The final regulations were not a reflection of the beliefs of the majority of Americans—but of an administration that had spent more than two years attempting to appease an unappeasable Catholic hierarchy.
In January 2012, HHS affirmed the existing exemption but also announced that it would create a “safe harbor” for religious organizations while it considered additional input, as a grace period for objecting organizations to be able to deny employees coverage without facing repercussions. Exactly three weeks later, President Obama announced that HHS would create a new carve-out: an “accommodation” for nonprofit religious organizations that did not fall under the criteria outlined in the exemption. Five days later, HHS released an advance notice of proposed rulemaking—a penultimate rule—that included both the previous exemption and new language, promised by the president, to “accommodate” other religiously affiliated nonprofit organizations. This accommodation, the administration asserted, would allow a third-party administrator of the insurance plan to directly provide contraceptive coverage to employees without the involvement of the employer. HHS also announced another opportunity for the public to submit comments. It received more than 64,000.
Following this period, in February 2013, HHS released a notice of proposed rulemaking, as well as the final opportunity for the public to weigh in before the federal government would establish regulations that carried the weight of law. These proposed rules, once again, included an exemption and an accommodation and only slightly modified the definitions of which organizations could qualify for each. This time, more than 400,000 members of the public submitted comments for HHS’s consideration.
Finally, on June 28, 2013, nearly two years after the IOM released its recommendations and following three rounds of public commentary on regulations that each decreased the number of women who would have access to no-cost contraception, HHS released its final rules on contraceptive coverage. These carried the weight of law, and they included a definition that completely exempted churches, dioceses and other religious institutions from having to provide contraceptive coverage to their employees. Also included was an accommodation for nonprofit religious organizations, which created a complicated system that relied on insurance companies to do the right thing by delivering contraceptive coverage directly to employees without employer involvement.
As they had been from the beginning, women working for religious institutions such as churches and synagogues that objected to contraceptive coverage were shut out from equal access to contraception—not once had the administration considered that these women’s religious liberty or health needs deserved attention. Women working for religiously affiliated organizations that objected to contraceptive coverage had a half-answer: they would probably be able to access contraceptive coverage, provided that the insurance bureaucracy managed to function according to the best-laid plans of an administration that had used these women as a bargaining chip when negotiating with objecting religious groups. Everyone else, who had been enjoying the benefits of no-copay contraceptive access since August 2012, was able to breathe easily—or so many thought.
The final regulations themselves were not a reflection of the beliefs and practices of the majority of Americans—or, notably, of American Catholics—but of an administration that had spent more than two years attempting to appease an unappeasable Catholic hierarchy and asking “how high” when its friends in the Catholic Health Association (CHA) demanded that it jump. Almost immediately following the first proposed regulations in the summer of 2011, the bishops, CHA and other conservative groups began crying foul—and crying wolf over a perceived threat to their “religious liberty.” During an interview with the Associated Press in August, Sr. Carol Keehan, president of CHA, made the erroneous assertion that the large carve-out was the “parish housekeeper exemption,” because those individuals were “all” it would apply to. Never mind the religious liberty rights or human dignity of every person, including housekeepers—Sister Keehan’s real interest was in expanding the exemption so that it would deny contraceptive access to hospital employees of all levels.
In that same interview, Sister Keehan made a direct appeal to the Obama administration: “Thank you very much for this exemption, but it’s not broad enough. We’d like to talk to you, and we hope you’ll listen.” The Associated Press reported that the CHA president objected to the definition of what constituted a “religious employer.” According to the administration, this signified a nonprofit employer whose mission is to promote religious values, and that primarily employs and serves people of the same faith. CHA failed this litmus test because “Catholic hospitals have never discriminated about employment,” Keehan asserted. According to her logic, the diversity of belief among her employees was a detail to be overlooked in favor of an organizational right to deny contraceptive coverage, instead of a compelling reason to leave the decision whether or not to access contraception up to the conscience of each CHA worker.
President Obama and several of his key cabinet members had championed the Catholic Health Association as a Catholic seal of approval for the Affordable Care Act after the USCCB rescinded its support for the law. The president and his administration had also embraced CHA as the leader of Enroll America, a campaign designed to increase health insurance enrollment.
The White House, therefore, faced a choice: bow to Sister Keehan’s insistence that religiously affiliated organizations have no responsibility for contraceptive coverage, or watch that ally rescind its much-heralded support for the president’s marquee legislative achievement.
The administration chose the former, according to a 2012 New York Times article, which reported on the recent accommodation of religiously affiliated nonprofits as “Rule Shift on Birth Control Is Concession to Obama Allies.” The article specified the foremost among these allies: “[T]he fight was for Sister Carol Keehan.” When the CHA president spoke, she had very good reason to believe the administration would listen.
Meanwhile, lawsuits were trickling in. By November of 2011, Belmont Abbey, a Catholic college, had filed a lawsuit against the proposed regulations. By March 15, 2012, less than one month after the Obama administration bent over backwards to accommodate -organizations like Catholic hospitals and universities, O’Brien In–dus—-trial Holdings, a raw ceramics mining company owned by a Catholic businessman, filed the first lawsuit from a for-profit corporation challenging contraceptive coverage requirements. The bishops announced that they were going to fight to repeal all contraceptive coverage through every avenue—in Congress and in the courts—until every employer, for-profit or nonprofit, Catholic college or “Taco Bell,” was allowed to refuse coverage to employees.
At every turn, the admin–istration’s doubling down on exemptions and accommodations reflected a willful disregard for input about the beliefs and needs of the majority of Americans, particularly Catholics. The day before the president announced that HHS would create an accommodation, Catholic university students had gathered at the National Press Club for a press conference to support contraceptive coverage and outline the importance of access without extra hoops. Kathleen Kennedy Townsend, the Catholic former lieutenant governor of Maryland and niece of the country’s only Catholic president, also took the stage to provide a heartfelt defense of contraceptive access for all. During the first round of public comments, more than 30,000 Americans signed a “We the Catholic People” pledge supporting contraceptive access and condemning any exemptions. Tens of thousands of individuals and organizations, including thousands of Catholics, told HHS time and time again that they supported contraceptive access. Catholics for Choice and 17 other Catholic organizations submitted joint comments explaining why our common faith compelled us to support contraceptive access without exception; one dozen respected Catholic theologians and 36 Catholic elected officials did the same.
Many people have argued that today’s religious liberty fight is taking place despite the Obama administration’s effort to give special treatment to religiously affiliated institutions and organizations. In reality, the ongoing conflict is because of it. From the moment the administration included an exemption for certain institutions in its August 2011 proposal, it set the stage for an escalation of the fight over religious liberty rights. When the decision was made to treat conscience rights as something that varies according to one’s workplace, it was assumed that some religious employers’ beliefs should naturally be able to trump those of their employees. The actions of the Obama administration sold the religious freedom of some workers down the river. It warped a neutral, generally applicable law with the goal of striking down health disparities and protecting women’s decision-making to create pockets in which certain women’s rights were ignored. And this was done at the behest of the very people whose obstructionism the law was designed to stop.
Catholics stopped looking to the bishops for advice on birth control a long time ago—what remains mystifying for most Catholics is why policymakers, pundits or judges would do so.
That obstructionism is rooted in the Catholic hierarchy’s attempts to redefine religious liberty. Moreover, that redefinition has relied on a misplaced, unbalanced and politicized interpretation of conscience. This was seldom more evident than on November 2, 2011, when Congress held a hearing about the proposed contraceptive coverage regulations and the Affordable Care Act titled, tellingly, “Do New Health Law Mandates Threaten Conscience Rights and Access to Care?”
The answer from both sides was “yes,” but the question that the hearing’s title did not ask—whose conscience was being threatened—was far more reflective of the actual debate. In her written testimony, Janet Belford, the chancellor for the Archdiocese of Washington, DC, noted that the USCCB and the archdiocese believed that contraceptive coverage regulations represented “an unprecedented threat to rights of conscience for religious organizations.” On the other side, Jon O’Brien, president of Catholics for Choice, told the members of the committee that, because of the contraceptive coverage exemption, “The new health law absolutely threatens the conscience rights of every patient seeking care for family planning and of every provider who wishes to provide comprehensive care to their patients.”
The difference between the two was clear. While the archdiocese was advocating for “rights of conscience for religious organizations,” Catholics for Choice was talking about the impact of the rules on people—on women and the doctors who care for them. This difference highlights the critical ways in which the bishops’ efforts to redefine religious liberty—in the courts, in the media, in the halls of Congress and state legislatures—are steeped in a misappropriated, unbalanced and politicized notion of conscience.
In taking a stand for liberty attributed to corporate entities, the bishops have sought to bestow upon institutions the conscience rights that properly belong, according to Catholic teachings and the US Constitution, to individuals. On a theological and philosophical level, this is a radical departure from how we understand human rights. Catholic teaching and the Constitution concur: human beings have rights. Catholics believe that people make a church—not the other way around. Each person, according to our faith, has a conscience given to us by God. Corporations, on the other hand, are not created by God in His image, and they are not souls with consciences to consult. Even on a practical level, the bishops’ argument that conscience rights belong to institutions is untenable. What, or who, would even have the final word on what a corporation’s “conscience” demands: the owners of a company? The head of its board of trustees? Its board of regents? A shareholder or union vote? The company’s founders? What, precisely, happens when there is disagreement within any of those groups, or a change in governance? The center of the bishops’ religious liberty rhetoric—the argument that religious liberty rights belong to institutions—does not hold.
The bishops’ religious liberty claims also represent an audaciously imbalanced approach. Conscience, according to Catholic teaching, can be guided but never coerced. Just as religious liberty should never be construed as the right to force others to follow one’s own religious beliefs, one’s conscience rights end where another’s begin. Conscience is a guiding light, not a torch to burn down the neighbor’s house. In debates surrounding contraceptive coverage, however, the bishops’ religious liberty arguments seek to tip the scales of justice to favor only the consciences of employers who would deny their employees healthcare. Such “conscience protections” are not balanced, as they do nothing to protect the consciences of people being denied healthcare or being discriminated against—indeed, they threaten these individuals.
Despite the best efforts of some lawyers and lobbyists to repackage discrimination as religious liberty and the USCCB’s full-throated cries that their objections are purely about conscience rights, it is also obvious that antiadministration sentiments are helping to drive the agenda. The mask first slipped off in the case of Michael Potter, the Catholic CEO of Eden Foods, a for-profit organic food company. Potter, like the owners of Hobby Lobby and Conestoga Wood Specialties, had sued the government to obtain an exemption from contraceptive coverage requirements. His suit stuck to the bishops’ playbook by using false definitions of religious liberty and conscience and cited his interpretation of Catholicism to justify preventing Eden Foods workers from exercising their own rights to conscience.
It was a textbook case in the bishops’ litigation strategy—until it wasn’t. In an interview with Salon, Potter stated quite bluntly that he may not sincerely believe what he claimed as grounds for his suit, but in fact, simply opposed having to play by the rules of civil society. “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” he said. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” That statement was the end of the story as far as his case was concerned, as it contributed, in part, to a judge’s decision to toss Potter’s case.
Like Eden Foods, the Hobby Lobby case seems rooted more in a contrarian opposition to government regulations than in disagreement with contraceptive access. A Mother Jones investigative report revealed that, as of three months after Hobby Lobby’s owners filed a lawsuit claiming that they were morally opposed to certain contraceptive services, company-sponsored 401(k) retirement plans invested $73 million in pharmaceutical companies that produce contraceptive and abortion medications. Hobby Lobby directly contributed at least $3.8 million of those funds as part of an employer matching program. Despite their claims otherwise, the Green family’s objections to federal contraceptive coverage regulations seem to have less to do with the “contraceptive coverage” part and much more to do with the “regulations” aspect that so troubled Potter.
Of course, the bishops’ religious liberty arguments would hardly have any steam if the media and the courts did not offer the USCCB deference that it does not merit. While the bishops certainly have a right to voice their opinions on public policy, the assumption that they speak for all Catholics on the issue of contraceptive coverage is dangerous and downright misinformed. In reality, the vast majority of American women from all faith traditions use modern contraception, and Americans from a wide variety of backgrounds support contraceptive access because of their deeply held religious beliefs. Actually, many religious groups spoke out in support of contraceptive coverage while HHS considered regulations, and they have continued to speak out as lawsuits have wound their way through the courts. Most recently, 29 faith-based organizations from Jewish, Catholic, Protestant, Hindu and other traditions filed a joint amicus brief supporting contraceptive coverage for the Supreme Court’s Conestoga Wood Specialties Corp. v. Sebelius and Hobby Lobby Stores, Inc. v. Sebelius cases. Those organizations wrote that they firmly believe that lawsuits seeking to overturn contraceptive coverage regulations “would undermine—not promote—religious liberty, by allowing employers to impose their owners’ religious beliefs on employees, many of whom will hold different moral and religious views on the use of contraception.”
Joining that brief were seven Catholic organizations who represented the views of the majority of Catholics. In practice, the overwhelming majority of Catholics use contraception and have for decades. Today, 99 percent of sexually active Catholic women have used a form of birth control that the bishops would ban. Catholics stopped looking to the bishops for advice on birth control a long time ago—what remains mystifying for most Catholics is why policymakers, pundits or judges would do so. In 2009, weeks before Senator Mikulski’s amendment to create women’s preventive services regulations passed the Senate, 63 percent of Catholic voters indicated that they supported birth control coverage in all insurance plans—whether private or government-run. In 2012, after Notre Dame and other Catholic universities filed lawsuits against required contraceptive coverage, 68 percent of Catholics nationwide said that religiously affiliated universities should not be allowed to deny employees and students birth control coverage.
Such support is unsurprising, considering not only the Catholic commitment to individual freedom of conscience described earlier, but Catholic teachings on social justice. As the US bishops’ own letter on economics noted in 1986: “The way society responds to the needs of the poor through its public policies is the litmus test of its justice or injustice.” Quite simply, attempts to block contraceptive access for some people on the basis of where they work are already discriminatory, but their impact on the poor makes them doubly unjust. It is the lowest-paid workers, after all—the cook for the parish rectory, the nursing home assistant, the minimum-wage cashier at a for-profit chain store—who are most harmed by complete denials of their consciences via exemptions, and who have the most to lose if lawsuits from for-profit and nonprofit employers are successful. Human dignity is not something earned by the size of one’s paycheck or where that paycheck comes from, but simply by virtue of being human.
Of course, Catholics, at 70 million strong, represent a significant religious group in the United States, but they certainly are not the only one. The Catholic tradition itself recognizes that the faithful live in a pluralistic society, as outlined in the Vatican’s Declaration on Religious Freedom. Taxpayers, voters, employers and workers in this country come from diverse backgrounds, and the fabric of society would fall apart if we did not all abide by at least some shared ground rules. Antidiscrimination policies such as those designed to eliminate women’s health disparities are one such basic legal standard. Catholic social service agencies are already woven into the larger society because they receive state and local grants for their charitable activities, so they should have to play by the same rules as everyone else.
Attempts to block contraceptive access for some people on the basis of where they work are already discriminatory, but their impact on the poor makes them doubly unjust.
While Catholic-affiliated organizations claim that their “freedom to serve” is jeopardized by contraceptive coverage regulations, they are endangering the health and conscience rights of the people who serve them. The best-kept secret in the religious liberty debate regarding contraceptive coverage, however, is that the sky does not fall when the government requires institutions like Catholic dioceses, hospitals or charities to provide contraceptive coverage to employees. In New York, Wisconsin, California and other states, Catholic employers have provided reproductive healthcare services to their employees for years. In a joint lawsuit, the Archdiocese of New York and several other New York-based, Catholic-affiliated organizations have sued in an attempt to prevent their employees from accessing contraception, once again invoking institutional “conscience” and objections to contraception to do so. The rub, however, is that at least one of the litigants joining the archdiocese’s parade, ArchCare Health Group, has already been providing contraceptive coverage for its employees since at least the 1990s, years before the Affordable Care Act was even a glimmer in anyone’s eye. ArchCare, a health system located on Long Island, employs 4,000 workers. In 2013, more than 3,000 ArchCare employees had contraceptive coverage through their employer-sponsored health plan and, as one union official put it, the archdiocese had not even raised it as an issue “in the last dozen years.” ArchCare had been doing for more than a decade what the bishops now claim is impossible: operating its hospitals as Catholic entities with the blessing of the local bishops, employing Catholics and non-Catholics alike and providing those employees with contraceptive coverage.
Today, however, the sad truth is that the consciences and religious liberty rights of ArchCare’s thousands of workers, who provide healthcare for their neighbors and have rightfully enjoyed comprehensive coverage for basic healthcare themselves, are seriously in jeopardy. Their employer’s lawsuit continues through the courts, and their healthcare access therefore remains in flux.
It is easy to be distracted by the theatrics of today’s religious liberty debate regarding contraception. This is, after all, the high-minded debate that led adult men to call sexually active college students names and allude to aspirin between the knees as an effective contraceptive, and that prompted one bishop to compare the president of the United States to Hitler and Stalin. Obscured by this ridiculousness, however, is the fact that real workers’ lives, health and consciences—the 4,000 working for ArchCare, the 17,000 working for Hobby Lobby and more—are at stake.
While the bishops will continue opposing contraceptive access, most people, including most Catholics, will keep going about their daily lives while using contraception and never giving it a second thought—but only if they have the luxury to do so.
One woman who does not have that luxury is “Sandra,” a Catholic science teacher at a Catholic middle school in the Midwest. She, like the vast majority of her colleagues at Catholic schools, is a laywoman. Like the majority of Catholic school teachers, she is Catholic, and like most Catholics, she uses contraception and supports access to contraception for herself and for others. As a teacher, she loves children, but she and her husband are not ready to have their own, and while there are ups and downs in her position, she is grateful to have a job that she is passionate about.
Sandra cannot access contraception through her health insurance plan. Instead, she has to pay out of pocket for the expensive brand that is right for her, a major cost for a Catholic teacher, who, according to a Michigan State University survey, earns an average of 45 percent less than her counterparts working in public schools. Sandra is one of the women who has been abandoned by loopholes that never took her health or religious liberty into account, and she literally pays the price each month. It is worth thinking about who else could be left in her position, should the bishops, their allies and their false definition of religious freedom rule the day.
As Senator Mikulski maintained from the beginning, who decides the healthcare options available to women is as important as how that decision is made. What we have seen is that many groups, the bishops foremost among them, think that they know what women need, and should be granted the authority to exclude contraception from the employer health plans covering female workers, and the spouses and children covered in employer health plans. This is far from living up to the “Faith! Family! Freedom!” refrain initiated by the anticontraception side at the Supreme Court. There, an outcome that would bring a smile of assurance to many women’s lips would be a decision that affirms women’s moral autonomy in making healthcare decisions, and ensures they will have the means to follow that decision regardless of where they work.