The Obama administration’s requirement that health insurance plans cover birth control has provoked a full-blown Republican firestorm over religious liberty. But the policy itself carves out an exemption for churches and doesn’t require any individual or employer to violate a religious belief — it simply ensures that their employees with different beliefs have the same access to birth control as all other women.
The background: The Affordable Care Act provides that insurance companies cover certain preventive health services without copays. Last August, the Department of Health and Human Services drew upon recommendations from the Institute of Medicine and decided that birth control be part of that package. It said employer-based health care plans must cover contraceptive services without copays. The move received limited attention at the time.
The issue blew up after HHS finalized the regulation on January 20, which goes into effect on August 1, 2012. Under the conscience clause, it exempts churches and other houses of worship that primarily employ people who share the institution’s view. The mandate applies to religious nonprofits such as universities and hospitals, which employ and serve people of different beliefs, but it gives them an extra one-year transition period to begin complying with the law.
The regulation is only for insurance carriers, not health providers. For instance, Catholic hospitals with religious objections to birth control do not have to provide it to their patients. They simply cannot deny their employees the same access, should they want it, as other employers are required to provide. Most insurance plans already cover birth control but many include copays that can be a deterrent.
“When a plan does cover birth control, it usually comes with a copay, and that can be as much as $15 to $50 a month,” said Jessica Arons, Director of the Women’s Health and Rights Program at the liberal Center for American Progress. “And there are a lot of women in this difficult economy that have put off prescriptions or end up not taking the pill as a cost cutting measure, because cost is such a barrier for them. So this rule just makes sure it’s covered by their premium and they don’t have to pay a copay or a deductible.”
Buried in the debate about whether this violates religious freedom is that 28 states already require insurance plans to cover all FDA-approved contraceptive drugs and services, according to the Guttmacher Institute. Two of them exclude “emergency” contraceptives such as Plan B One-Step from the coverage requirement, and one state excludes minor dependents.
While top Republicans like Speaker John Boehner (R-OH) and leading presidential contender Mitt Romney have slammed the HHS decision as a violation of religious freedom, the Obama administration has gone out of its way to defend it as a balanced solution between respect for religious belief and ensuring access to preventive health services. Progressives like Rachel Maddow argue that the core issue is not religious liberty, but a GOP “war on contraception.”
The freakout encompasses the gamut of right-leaning bloggers, GOP strategists, 2012 candidates, and lawmakers from top to bottom. Its magnitude reflects a confluence of factors, including the GOP smelling a major opportunity to hurt Obama politically, and moderate elements of the Catholic community furious that the administration didn’t grant them this exception after they went out on a limb to support his health care reform law.
Lawsuits are already propping up to challenge the decision. But supporters of the requirement feel they have little reason to worry — for now, at least. “I think the lower courts will support the HHS rule, based on the precedent,” Arons said. “But if it makes it to the Supreme Court, I don’t know how it will play out given the Court’s current makeup.”
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.