Affordable Care Act - New Hurdles with Contraception
The Patient Protection and Affordable Care Act cleared two major hurdles in 2012: the Supreme Court ruling on constitutionality and the reelection of President Barack Obama. However, in 2013 there is a very good chance that Courts will see much more of the health care reform law due to objections regarding the contraception mandate. Despite the bills legal successes in the past, there are (at publication) more than 35 different cases on file against the contraception mandate submitted by individual companies and religious organizations.
The health care law requires that insurance plans cover birth control and other women’s preventive health services. Further, it reduces cost sharing by requiring that these services be provided with no co-payments, deductibles or coinsurance at the start of the next plan year. For proponents of the bill, this means more health plans come under the law’s influence, and that more women will be able to save money when they pick up their birth control. Moreover, preventative services that have “strong scientific evidence” of health benefits such as prenatal care, breastfeeding support, screening for domestic violence, cervical cancer screenings, well-woman visits and mammograms will be covered by health insurance plans.
Proponents of the Affordable Care Act further assert that gender equality in the US means women having complete control over their reproductive lives and that the new coverage guidelines developed by the Institute of Medicine ensures that. However, some organizations do not believe funding such services align with their organizational missions. Most filing amicus briefs are using the Religious Freedom Restoration Act, and it’s precedence of unanimous support by the Supreme Court, to say that the mandate violates religious organizations right to not pay for contraception. These organizations fail to meet the especially narrow exemption rule that group health plans sponsored by certain religious employers are exempt from the requirement if the “religious employer is one that: 1. has the inculcation of religious values as its purpose; 2. primarily employs persons who share its religious tenants; 3. primarily serves persons who share its religious tenants; and 4. is a non-profit organization under Internal Revenue Code section 6033(a)(1) AND section 6033(a)(3)(A)(i) or (iii).
The Religious Freedom Restoration Act, which most are using as the basis for fighting the mandate, requires that the federal “government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person 1. is in furtherance of a compelling governmental interest and 2. is the least restrictive means of furthering that compelling governmental interest.” Amicus briefs tend to argue that the present bill is not the least restrictive alternative and that the need to “primarily” employ and serve people of one religion is not a proper reflection of hiring practices allowed by organizations. Some additionally argue that being forced to pay for health care services that violate their core mission statements should not be legal.
Those in support of the mandate, like the American Civil Liberties Union (ACLU), believe that in the long game, the mandate will be upheld. The ACLU specifically states in their amicus brief that the plaintiffs are trying to “discriminate against women and deny them benefits because of [the employer’s] religious beliefs.” Other experts have suggested that the state-level Courts might take each case on its own merits leading to many different outcomes, with several being possible cases for the Supreme Court. One thing is certain for 2013 though, no matter where a woman falls in here beliefs about what the health reform bill should and should not require, the Affordable Care Act still has many hurdles before full implementation.
Nicole Fisher is the Founder and Principal at HHR Strategies, a health care and human rights focused advising firm, advising companies, ideas and people that are changing the health care landscape. Additionally, she is a Senior Policy Advisor and health policy expert on health economic analyses mainly focusing on Medicare, Medicaid and health reform, specifically as they impact minority ...