WASHINGTON The Supreme Court has agreed to hear a pair of cases that challenge the Health and Human Services mandate requiring most private companies' insurance to provide coverage for contraceptives and abortifacients. The Obama administration asked the high court to review the issue after a federal appeals court in Colorado found in favor of Hobby Lobby, an Oklahoma-based crafts franchise. The court will combine the Hobby Lobby case with lesser-known case involving Conestoga, a Pennsylvania company that lost earlier bids for relief from the mandate.
These are among the questions people are asking about the issue:
Q: What is this contraception mandate?
A: As part of the Affordable Care Act, the universal health insurance reform passed in 2010 (often referred to as "Obamacare"), all group health plans must now provide at no cost to the recipient certain "preventive services." The list of services mandated by the Department of Health and Human Services includes sterilization, contraceptives and abortifacient drugs.
Q: If this mandate is from 2010, why are we talking about it in 2013?
A: On Jan. 20, 2012, the Obama administration announced that it would not expand the exemption for this mandate to include religious schools, colleges, hospitals and charitable service organizations. Instead, the administration merely extended the deadline for religious groups who do not already fall within the existing narrow exemption so that they will have one more year to comply or drop health care insurance coverage for their employees altogether and incur a hefty fine.
Q: Is there a religious exemption from the mandate? If so, who qualifies for the exemption?
A: According to the Becket Fund for Religious Liberty, there is a "religious employer" exemption from the mandate but it is extremely narrow and will, in practice, cover very few religious employers. The exemption may cover certain churches and religious orders that inculcate religious values "as [their] purpose" and which primarily employ and serve those who share their faith.
Many religious organizations including hospitals, charitable service organizations and schools cannot meet this definition. They will be forced to choose between covering drugs and services contrary to their religious beliefs or cease to offer health plans to their employees and incur substantial fines. "Not even Jesus' ministry would qualify for this exemption," they note, "because He fed, healed, served and taught non-Christians."
Q: Doesn't the mandate only apply to religious organizations that receive federal funding?
A: No. The mandate applies to religious employers even if they receive no federal funding.
Q: When did the government begin requiring employer insurance programs to pay for contraceptives?
A: According to the Becket Fund, the trend toward state-mandated contraceptive coverage in employee health insurance plans began in the mid-1990s and was accelerated by the decision of Congress in 1998 to guarantee contraceptive coverage to employees of the federal government through the Federal Employees Health Benefits Program (FEHBP). After FEHBP the largest employer-insurance benefits program in the country set this precedent, the private sector followed suit, and state legislatures began to make such coverage mandatory.
Q: Why is the federal government dictating that contraceptives should be covered by insurance?
A: In 2000, the EEOC issued an opinion stating that the refusal to cover contraceptives in an employee prescription health plan constituted gender discrimination in violation of the Pregnancy Discrimination Act (PDA). That law was adopted by Congress in 1978 in response to a Supreme Court decision holding that an employer's selective refusal to cover pregnancy-related disability was not sex discrimination within the meaning of Title VII, the primary federal law addressing employment discrimination.
As the Beckett Fund notes, "Although this opinion is not binding on federal courts, it is influential, since the EEOC is the government body charged with enforcing Title VII. This opinion led to many lawsuits against non-religious employers who refused to cover prescription contraceptives." The federal district courts have split over the issue of whether the PDA requires employers to provide contraception. The only federal court of appeals to address the issue held that the PDA did not include a contraceptive mandate.
Q: But what about the First Amendment protections? Isn't such a requirement inherently unconstitutional?
A: In Employment Division v. Smith, the Supreme Court ruled that the First Amendment's free exercise clause "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability,'" simply because "the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." According to the Becket Fund this means that the fact that an act infringes on the religious beliefs or regulates the religiously motivated policies of a religious institution does not necessarily make the law unconstitutional.
Q: I don't oppose contraceptives, so why should I care about this issue?
A: There are two reasons that all Christians, regardless of their view on contraceptives, should be concerned about this mandate.
The first reason is because it forces Christians to pay for abortion-inducing drugs. The policy currently requires coverage of Ulipristal ("ella"), which is chemically similar to the abortion drug RU-486 (mifepristone) and has the same effect (to prevent embryos from being implanted or, if already implanted, to die from lack of nutrition). Additionally, RU-486 also is being tested for possible use as an "emergency contraceptive." If the FDA approves it for that purpose, it will automatically be included under the mandate.
The second reason is that it restricts religious liberty by forcing religious institutions to pay for contraceptives and abortifacients even if the employer has a religious or moral objection to such practices.
Q: While it may be a pro-life concern, why is it a religious liberty issue for me since I support the use of contraception?
A: If the mandate is allowed to stand it will set a precedent that the government can not only force citizens to violate their most deeply held beliefs but that we can be sanctioned for refusing to do so. As John Leo has noted, today it is contraceptives and abortifacients, but "down the road it will be about suicide pills, genetic engineering, abortion and mandatory abortion training, transgender operations, and a whole new series of morally problematic procedures about to come over the horizon."
As Leo has recounted, a Catholic-run California hospital was sued because it refused to perform breast-enlargement surgery on a transgendered patient. The state court ruled the hospital had violated the state's anti-discrimination laws. (Caving under litigation, the hospital paid $200,000 to the transgendered man.)
Q: Didn't the Obama administration offer a compromise?
A: In response to the concerns of religious organizations, Obama offered a "compromise" in which he proposed that insurance companies, instead of religious institutions, be required to cover procedures and products that they find objectionable at no cost in their insurance policies. In other words, the insurer would be required to provide the services "free of charge" and pay for them out of their own pocket.
As economist Steve Landsburg has noted, the proposed compromise does not really change the fact that the religious employers are still being forced to pay for the contraceptives-abortifacients: "[A]ll economists ... understand that transferring the responsibility from employers to insurers amounts to transferring the cost from [insurers] to insurance buyers, which is to say that it's not a change in policy. One of the first and most important lessons we teach our students is well summarized by a slogan: 'The economic burden of a tax is independent of the legal burden.' Ditto for a mandated insurance purchase. It is not the law, but the underlying price-sensitivities of buyers and sellers that determines where the burden ultimately falls. Your president knows this. He's banking that you don't."