News Contraception

The Hawaii Compromise? White House to Announce Change In Birth Control Mandate

Jodi Jacobson

This morning, news reports indicate an announcement may be imminent from President Obama on a "compromise" on the birth control mandate. To recap, the mandate requires that all employer-based health insurance offer coverage without a co-pay of all FDA-approved contraceptive methods.

See all our coverage of the 2012 Contraceptive Mandate here.

This morning, news reports indicate an announcement may be imminent from President Obama on a “compromise” on the birth control mandate. To recap, the mandate requires that all employer-based health insurance offer coverage without a co-pay of all FDA-approved contraceptive methods. The basis for this mandate is a mountain of public health and individual medical evidence supporting the benefits of access to contraception as well as another mountain of legal precedent, at the base of which sits the basic human rights of all people to determine whether, when, and with whom to bear children.

Under the current rule, which goes into effect officially on August 1, 2012, churches and other institutions whose primary purpose is the inculcation of religious beliefs are exempt. Religiously-affiliated hospitals, universities and social service organizations whose primary purpose are medicine, education, or services and who employ people of many faiths are not.

This rule has thrown the United States Conference of Catholic Bishops into a tizzy the likes of which have not been seen since… oh yeah… 2010 and the health reform debate when they made insisted that women lose all coverage for abortion care they now have, and when they tried to remove contraception from the primary health care benefits package.  The Bishops not only want religiously-affiliated institutions to be exempt no matter what their purpose; they’ve now made clear they want individual employers to be able to exempt themselves based on their “conscience.”

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Now, the Obama Administration, having completely fumbled an issue they have repeatedly fumbled and from which experiences they have apparently not learned a thing, is purported to be on the verge of announcing a “compromise.”

Early reports are that such a compromise may at least to some degree be based on a law in Hawaii. 

In 1999 Hawaii passed a law (which went into effect in 2000), that says as follows:

Hawaii Rev. Stat. § 432:1-604.5 and § 431:10A-116.6 (1999) direct that employer group health policies, contracts, plans or agreements must cease to exclude contraceptive services or supplies, including FDA-approved contraceptive drugs or devices to prevent unwanted pregnancy, and must not charge unusual co-payments or impose waiting requirements. (1999 Hawaii Sess. Laws. Act 267; SB 822)

Hawaii Rev. Stat.  § 431:10A-116.7 (1999) defines a religious employer and states that such an employer may request a health insurance plan without coverage for contraceptive services and supplies. If so requested, the health insurer must provide a plan without such coverage.  Each religious employer that invokes this exemption must provide written notice to enrollees upon enrollment a list of services the employer refuses to cover and provide written information describing how an enrollee may access contraceptive services and supplies.  (1999 Hawaii Sess. Laws. Act 267; SB 822)

And the problem here, especially in this climate is as I said yesterday. It legitimizes a false argument about religious freedom that now will be used again and again to limit reproductive rights. It separates out a form of basic primary preventive care as though it were not basic primary preventive care, and it re-stigmatizes contraception. It gives Church administrators power over women that they have shown time and again to abuse and puts women in a subservient position to administrators at their place of work.  And it requires individual women to ensure accountabiity to vague laws and statutes, creating a nightmare for them.  It gives more power to people who are spending their entire lives working to take reproductive health care away from women.

Sarah Posner, cited at FiredogLake, quote Jon O’Brien of Catholics for Choice as follows:

“It may seem reasonable on the surface,” said O’Brien, “but it sends the wrong message, namely: that an employer’s personal beliefs may interfere with an employee’s conscience and therefore make it more difficult for him/her to access the healthcare coverage that he or she needs.”

In New York, which allows for this “self-insurance,” O’Brien said, “we have heard horror stories” of how it operates in practice. Imagine, he said, working at a Catholic school and going to your employer to request this special coverage. “We’ve heard anecdotal evidence that some workers at certain religious institutions have had to sign testimonials stating that they understand that contraception is against their employers’ beliefs, thereby bullying them into either not seeking insurance that covers contraception or into jumping through hoops to try to access it,” O’Brien said.

Finally, a national law will ostensibly over-ride state laws, many of which right now in fact require universal coverage of contraception in their plans with the exception only of institutions for which religious inculcation is their primary purpose.  This means that untold numbers of women will lose coverage they already have.

Compromise? For whom on behalf of whom?

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