Analysis Contraception

Is the Blunt Amendment Constitutional?

Annamarya Scaccia

The Obama Administration’s recently-announced accommodation to the Affordable Care Act’s contraceptive mandate should have put any controversy to rest.

The Obama Administration’s recently-announced accommodation to the Affordable Care Act’s contraceptive mandate should have put any controversy to rest.

After all, the mandate’s modified religious exemption rule now covers those religious organizations that initially decried it. Like houses of worship, religiously-affiliated employers, such as Catholic hospitals or Jesuit universities, are no longer required to offer contraceptive care with their health plans. Instead, under the new adjustment, employees can get coverage of contraception without a co-pay directly from their insurance company, without cost to their employer. These organizations have a one-year transition period to find a complying provider.

It’s a modification applauded by religious groups and reproductive health advocates. Sister Carol Keehan, DC,  president and CEO of the Catholic Health Association of the United States (CHA) and Rev. Larry Snyder, Catholic Charities USA’s (CCUSA) president and CEO both believe the compromise is “a step in the right direction,” while the Center for Reproductive Rights’ (CRR) released a statement saying it “preserves the no-copay birth control benefit for all women.” It would seem that, after much debate, both sides have found themselves on the same page.

“It’s kind of hard to imagine what kind of objections could remain to that since, as previously described, the objection voiced was paying for the coverage,” says Sarah Lipton-Lubet, policy counsel at the American Civil Liberties Union (ACLU) Washington Legislative Office. “Now religiously-affiliated employers are just gonna be able to wash their hands of the whole business.”

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Enter the United States Conference of Catholic Bishops (USCCB).

The USSCB, which represents church hierarchy and effectively acts as the Vatican’s U.S. lobbying arm, originally claimed the religious exemption rule was “too narrow” and should also exempt religiously-affiliated employers. It has since changed its tune. According to a February 10 press release, the USCCB is now concerned for the financial culpability and Constitutionally-protected religious liberty of “self-insured religious employers; religious and secular for-profit employers; secular non-profit employers; religious insurers; and individuals” (while objecting employers will not have any monetary responsibility, and contraceptives are, in fact, cost-effective and cost-neutral, there is concern that insurance companies will need to find a way to “pass on the immediate costs to their other customers”). The lack of clear religious liberty protection for these “key stakeholders…is unacceptable and must be corrected,” proclaims the USCCB. In fact, the organization writes, it wants the entire contraceptive mandate repealed.

It has been their goal all along, says Lipton-Lubet, “regardless of a woman’s health care needs and regardless of a woman’s own belief.”

“What this fight has really been about are efforts to roll back access to birth control, despite the fact that almost all women use it and despite the fact that institutes like the Center for Disease Control have acknowledged that family planning is one of the greatest public health achievements in the last century,” she says.

The USCCB has double-downed on their efforts to make this happen. And it seems Senator Roy Blunt (R-Mo.) may be their ticket—again.

The Blunt Amendment

Sen. Blunt, like the USCCB, finds President Obama’s accommodation unsettling, according to a statement he released earlier this month. In it, he says that the President “does not understand this isn’t about cost”—that this fight is actually about “the religious views of faith-based institutions.” All President Obama has done, claims Sen. Blunt, is “come up with an accounting gimmick” and nothing to satisfy “the fundamental constitutional freedoms that all Americans are guaranteed.”

“I’ll continue to work with my colleagues on both sides of the aisle to ensure that we reverse this unconstitutional mandate in its entirety,” he promises.

This is where the Blunt Amendment comes in.

The day before the Obama administration’s announcement, Sen. Blunt introduced his amendment as an attachment to a transportation bill, the American Fast Forward Financing Innovation Act of 2011 (S.1813) sponsored by Senator Barbara Boxer (D-CA). Initially, Senate Majority Leader Harry Reid (D-Nev.) blocked a vote on Sen. Blunt’s amendment.  He later agreed to allow a Senate vote, which could come any day now.

This amendment shouldn’t come as surprise to anyone who’s followed Sen. Blunt’s legislative history. In essence, it’s a version of the earlier Respect for Rights of Conscience Act of 2011 (S.1467), introduced by Blunt in August. And like Blunt’s original bill, which USCCB backs, his exceedingly broad amendment would potentially grant any employer or insurance provider the right to refuse health care service coverage without penalization or discrimination, if they claim doing so is counter to their moral or religious beliefs. Blunt’s amendment currently has 37 co-sponsors, including Senator Marco Rubio (R-FL), who also introduced his own bill, the Religious Freedom Restoration Act of 2012 [S.2043], the latter of which focuses specifically on health care exclusions and would allow all employers to deny contraceptive coverage on religious grounds. 

“What the Blunt Amendment would really do is give employers and insurers a license to discriminate and impose their beliefs on employees and policy holders who don’t share them,” says Lipton-Lubet. “That’s not what religious liberty is for but it is a logical conclusion of the Bishops’ request regarding birth control…It’s playing politics with health care run amuck.”

In other words: if Anthony Picarello Jr., the USCCB’s general counsel and associate general secretary for policy and advocacy, were to quit and open that Taco Bell after all, not only could he deny his employees coverage for contraceptive, but also cancer screening, STD testing, vaccinations, mental health services and medication, maternity care or whatever else he finds morally questionable.

This is an assertion Sen. Blunt has refuted through a recently-released fact-sheet. According to this document, existing state laws would not be affected by his amendment, nor would any law under the Affordable Care Act be addressed. Instead “it simply ensures that Americans are guaranteed the same rights and freedoms that they enjoyed before President Obama’s unconstitutional mandate”—meaning that employers with religious objections would be able to “negotiate” a needs-specific health care plan like they “had before ObamaCare” (Sen. Blunt’s office has not returned a request for comment sent prior to the release of the fact-sheet).

“This is a distorted view of religious liberty. It’s one that would grant virtually boundless rights to use religion to discriminate or ignore important health and safety protections, and importantly, one that has no basis in law or the Constitution,” says Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief.

“As far as religious freedom goes, you certainly have a right to believe that certain health care is immoral but you don’t have a right to insist that your employees’ health practices and benefits conform to your faith.”

For insurance companies, this is particularly true. According to Franita Tolson, assistant professor at Florida State University’s College of Law, since the accommodation “applies to everyone equally” (otherwise known as a “neutral law of general applicability”), insurance companies would be hard pressed to make a valid claim of unconstitutionality.  However, she warns, insurers may have cause under the Religious Freedom Restoration Act of 1993, which prohibits the federal government from infringing on one’s religious freedom, even if the infringement is a result of a general applicable rule, if they can successfully prove “a substantial burden on the exercise of their religion.”   “[Since] contraception as a sin is central to Catholic doctrine, [insurers] may be able to make this showing,” Tolson says. 

Lipton-Lubet takes a different stance. “It’s certainly not an infringement on religious liberty to ensure that women have access to health care that they need,” she says.

But this is something Tolson, who teaches constitutional law and election law at Florida State University, would disagree with—somewhat.

“It could be a potential infringement. If religious-affiliated insurers are forced to cover contraceptives, then they have a cognizable claim that their religious liberty is being burdened. Whether or not you think the claim will be successful is a different question,” she says. “It seems like [Lipton-Lubet] is saying that [s]he doesn’t think that such a claim will be successful and I am inclined to agree, but I still think there is a potential claim.”

Still, says Tolson, the modification is “consistent with Congress’ authority to regulate interstate commerce.” Insurers can challenge that Congress has exceeded its authority but “given the scope of this authority, however, it is unlikely that such a challenge will succeed.” “This may change, of course, if the Supreme Court invalidates portions of the health care bill this year,” she says.

While Tolson notes it is “conceivable” to make “the slippery slope argument”—that passing the amendment would open a legal door for any employer to eliminate vital health care coverage—there’s one thing to remember: “It is still a business. Once insurance companies start arbitrarily denying coverage, then they will lose business.” (Tolson does not believe the Blunt Amendment would pass in its current form).

But What About Contraception?

As for contraception itself—the central part of the controversy and the target of the Blunt amendment and USCCB’s wrath—scholars point out that it’s not a cut-and-dry case, constitutionally speaking.  Tolson thinks that the Blunt Amendment, as well as the Rubio bill, “certainly raise issues under the Equal Protection Clause.” But, she maintains, such a challenge would fail, primarily because there isn’t an actual constitutional privilege to contraceptive coverage.

“One of the reasons that the Supreme Court has not overturned Roe v. Wade is because they believed people have started to rely on their constitutional right to obtain an abortion, if needed. Overturning it would therefore be too disruptive,” says Tolson. But because the contraceptive mandate “hasn’t [yet gone] into effect, it [also] has not [yet] engendered the type of reliance that could potentially raise constitutional concerns.”

“If this provision [were in] effect and millions of women relied on their insurance to cover contraception, one could conceivably make the argument that taking it away violates the Constitution under a substantive due process theory.”

In fact, Tolson turns to the 1974 case, Geduldig v. Aiello, in which the Court found that California’s Disability Fund did not violate the Constitution under the Equal Protection Clause by denying insurance benefits to women who experienced disability during pregnancy.

In its decision, the Court found that California could “choose which disabilities to insure…in order to maintain the solvency and contribution level of the program.”Although only women can get pregnant, pregnancy was not treated as a sex-based classification.  I suspect that you will have a similar problem in this context,” she says.

Once more, advises Tolson, there’s a chance the Supreme Court, if it gets to that, could extend the reasoning behind the Hyde Amendment to contraceptives in terms of men having access to some preventive care versus women. The Hyde Amendment provides federal funding for childbirth but not abortions. But in the in the 1980 case, Harris v McRae, the Court found it did not violate the Constitution “even though it treats these two things differently.”

“Like the Hyde Amendment, the issue is who will pay. It is not as if this is an outright prohibition of contraceptives, which would be a different case,” Tolson says.

However, while there isn’t a strong Equal Protection or gender discrimination claim based on the Constitution, Tolson does offer that there is “definitely a viable Title VII [of the 1964 Civil Rights Act] action here.” As reported previously for Rewire, the Equal Employment Opportunity Commission (EEOC) ruled in 2000 that employer-provided insurance plans that refused contraceptive coverage but provided coverage for impotency and blood-pressure treatment were in violation of Title VII, which prohibits discrimination on the basis of sex, race, color, religion and national origin. And, as reported by Mother Jones, the EEOC opinion, sans a Supreme Court decision, was approved with no alteration or withdrawal from the George W. Bush administration. Thus, for the last 12 years, most proprietors with 15-plus employees have been required to offer contraceptive coverage if they offer preventive care for men and women.

Which brings us back to the USCCB and other anti-choice activists. While their intentions to overturn the birth control mandate in its entirety have been stated, there has to be something else to this debate, right?

“It’s incredibly misleading that the cause of religious liberty is being used essentially a Trojan horse to dismantle all of the Affordable Care Act,” says Laura MacCleery, CRR’s government relations director. “That’s really the goal and that has been the stated goal of many members of the House of Representatives, to take apart this new health care reform law. This is just another attempt at dismantling the basic protections that have been put into law and are still being put into implementation.”

“Certainly women’s health is being used quite cynically to try to incite conservative voters and to make this into a wedge issue that drives voters to the polls.”

News Economic Justice

Colorado Voters Could Get a Chance to Boost the State’s Minimum Wage

Jason Salzman

A campaign fact sheet cited an April survey showing that 59 percent of the 2,400 U.S. small businesses polled favor raising the minimum wage, and that about 40 percent of those polled already pay entry-level employees "far above" the required minimum wage in their location.

Colorado’s minimum wage would increase from $8.31 to $12 by 2020 if Colorado voters approve a ballot initiative that could be headed to the November ballot.

Patty Kupfer, campaign manager for Colorado Families for a Fair Wage told reporters Monday that Colorado Families for a Fair Wage, a coalition of groups, submitted more than 200,000 signatures to the Colorado secretary of state, more than double the number required to make the ballot.

Hundreds of volunteers and dozens of organizations collected signatures, Kupfer said.

“Raising the minimum wage is fair and it’s smart,” Kupfer said. “It’s fair because people working full time should earn enough to support their families. It’s smart because when working people have more money in their pockets, they spend it here in Colorado, boosting our economy and helping our community thrive.”

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Speaking at the news conference staged in front of stacked boxes of petitions, Marrisa Guerrero, identified as a certified nursing assistant, said she works seven days a week and still relies on subsidized housing.

“Making $300 a week is not enough to pay rent and buy groceries for a family like mine,” said Guerrero, adding that she’d “really like” to see an increase in the minimum immediately, but “2020 would work wonders.”

After 2020, the state’s minimum wage would be adjusted annually for cost-of-living increases under the initiative.

Tyler Sandberg, a spokesperson for Keep Colorado Working, an organization opposing the initiative, appeared at the news conference and told reporters that he was “especially” worried about the initiative’s impact on small businesses.

“The big corporations, the wealthy areas of Denver and Boulder, might be able to afford [it], but small businesses, rural and poor communities, cannot afford this,” Sandberg told reporters. “So you are going to put people out of work with this. You’re going to harm the same people you’re trying to help.”

“It’s one size that doesn’t fit all. It’s the same for a small business as it is for Pepsi Cola,” said Sandberg, whose organization includes the Colorado Restaurant Association, the Colorado Association of Commerce and Industry, and the National Association of Independent Business.

Asked by Rewire to respond to Sandberg’s argument against a higher wage, Kupfer said, “Research shows small businesses support increasing the minimum wage. The truth is, when workers make more, that means more customers in local Colorado businesses. Both in rural and urban parts of the state, when working people do well, our communities thrive.”

A campaign fact sheet cited an April survey showing that 59 percent of the 2,400 U.S. small businesses polled favor raising the minimum wage, and that about 40 percent of those polled already pay entry-level employees “far above” the required minimum wage in their location.

“In my company, we have customer service representatives being paid $15 per hour,” Yoav Lurie, founder of Simple Energy, told reporters at the news conference. “While others might choose to pay customer service reps minimum wage, we have found that higher pay leads to improved performance and better retention and better customer satisfaction.”

Workers who rely on tips would see their minimum hourly wage increase by about 70 percent, from $5.29 to $8.98, while other workers would get a 44 percent increase by 2020. The initiative states that “no more than $3.02 in tip income may be used to offset the minimum wage of employees who regularly receive tips.”

Colorado passed a constitutional amendment in 2006 that bumped the minimum wage to $6.85. It’s been raised according to inflation since then.  The federal minimum wage is $7.25 and has not been increased since 2009.

Colorado’s Republican legislators killed legislation this year to allow cities to raise the minimum wage.

Roundups Sexual Health

This Week in Sex: The Sexually Transmitted Infections Edition

Martha Kempner

A new Zika case suggests the virus can be transmitted from an infected woman to a male partner. And, in other news, HPV-related cancers are on the rise, and an experimental chlamydia vaccine shows signs of promise.

This Week in Sex is a weekly summary of news and research related to sexual behavior, sexuality education, contraception, STIs, and more.

Zika May Have Been Sexually Transmitted From a Woman to Her Male Partner

A new case suggests that males may be infected with the Zika virus through unprotected sex with female partners. Researchers have known for a while that men can infect their partners through penetrative sexual intercourse, but this is the first suspected case of sexual transmission from a woman.

The case involves a New York City woman who is in her early 20s and traveled to a country with high rates of the mosquito-borne virus (her name and the specific country where she traveled have not been released). The woman, who experienced stomach cramps and a headache while waiting for her flight back to New York, reported one act of sexual intercourse without a condom the day she returned from her trip. The following day, her symptoms became worse and included fever, fatigue, a rash, and tingling in her hands and feet. Two days later, she visited her primary-care provider and tests confirmed she had the Zika virus.

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A few days after that (seven days after intercourse), her male partner, also in his 20s, began feeling similar symptoms. He had a rash, a fever, and also conjunctivitis (pink eye). He, too, was diagnosed with Zika. After meeting with him, public health officials in the New York City confirmed that he had not traveled out of the country nor had he been recently bit by a mosquito. This leaves sexual transmission from his partner as the most likely cause of his infection, though further tests are being done.

The Centers for Disease Control and Prevention (CDC)’s recommendations for preventing Zika have been based on the assumption that virus was spread from a male to a receptive partner. Therefore the recommendations had been that pregnant women whose male partners had traveled or lived in a place where Zika virus is spreading use condoms or abstain from sex during the pregnancy. For those couples for whom pregnancy is not an issue, the CDC recommended that men who had traveled to countries with Zika outbreaks and had symptoms of the virus, use condoms or abstain from sex for six months after their trip. It also suggested that men who traveled but don’t have symptoms use condoms for at least eight weeks.

Based on this case—the first to suggest female-to-male transmission—the CDC may extend these recommendations to couples in which a female traveled to a country with an outbreak.

More Signs of Gonorrhea’s Growing Antibiotic Resistance

Last week, the CDC released new data on gonorrhea and warned once again that the bacteria that causes this common sexually transmitted infection (STI) is becoming resistant to the antibiotics used to treat it.

There are about 350,000 cases of gonorrhea reported each year, but it is estimated that 800,000 cases really occur with many going undiagnosed and untreated. Once easily treatable with antibiotics, the bacteria Neisseria gonorrhoeae has steadily gained resistance to whole classes of antibiotics over the decades. By the 1980s, penicillin no longer worked to treat it, and in 2007 the CDC stopped recommending the use of fluoroquinolones. Now, cephalosporins are the only class of drugs that work. The recommended treatment involves a combination of ceftriaxone (an injectable cephalosporin) and azithromycin (an oral antibiotic).

Unfortunately, the data released last week—which comes from analysis of more than 5,000 samples of gonorrhea (called isolates) collected from STI clinics across the country—shows that the bacteria is developing resistance to these drugs as well. In fact, the percentage of gonorrhea isolates with decreased susceptibility to azithromycin increased more than 300 percent between 2013 and 2014 (from 0.6 percent to 2.5 percent).

Though no cases of treatment failure has been reported in the United States, this is a troubling sign of what may be coming. Dr. Gail Bolan, director of CDC’s Division of STD Prevention, said in a press release: “It is unclear how long the combination therapy of azithromycin and ceftriaxone will be effective if the increases in resistance persists. We need to push forward on multiple fronts to ensure we can continue offering successful treatment to those who need it.”

HPV-Related Cancers Up Despite Vaccine 

The CDC also released new data this month showing an increase in HPV-associated cancers between 2008 and 2012 compared with the previous five-year period. HPV or human papillomavirus is an extremely common sexually transmitted infection. In fact, HPV is so common that the CDC believes most sexually active adults will get it at some point in their lives. Many cases of HPV clear spontaneously with no medical intervention, but certain types of the virus cause cancer of the cervix, vulva, penis, anus, mouth, and neck.

The CDC’s new data suggests that an average of 38,793 HPV-associated cancers were diagnosed each year between 2008 and 2012. This is a 17 percent increase from about 33,000 each year between 2004 and 2008. This is a particularly unfortunate trend given that the newest available vaccine—Gardasil 9—can prevent the types of HPV most often linked to cancer. In fact, researchers estimated that the majority of cancers found in the recent data (about 28,000 each year) were caused by types of the virus that could be prevented by the vaccine.

Unfortunately, as Rewire has reported, the vaccine is often mired in controversy and far fewer young people have received it than get most other recommended vaccines. In 2014, only 40 percent of girls and 22 percent of boys ages 13 to 17 had received all three recommended doses of the vaccine. In comparison, nearly 80 percent of young people in this age group had received the vaccine that protects against meningitis.

In response to the newest data, Dr. Electra Paskett, co-director of the Cancer Control Research Program at the Ohio State University Comprehensive Cancer Center, told HealthDay:

In order to increase HPV vaccination rates, we must change the perception of the HPV vaccine from something that prevents a sexually transmitted disease to a vaccine that prevents cancer. Every parent should ask the question: If there was a vaccine I could give my child that would prevent them from developing six different cancers, would I give it to them? The answer would be a resounding yes—and we would have a dramatic decrease in HPV-related cancers across the globe.

Making Inroads Toward a Chlamydia Vaccine

An article published in the journal Vaccine shows that researchers have made progress with a new vaccine to prevent chlamydia. According to lead researcher David Bulir of the M. G. DeGroote Institute for Infectious Disease Research at Canada’s McMaster University, efforts to create a vaccine have been underway for decades, but this is the first formulation to show success.

In 2014, there were 1.4 million reported cases of chlamydia in the United States. While this bacterial infection can be easily treated with antibiotics, it often goes undiagnosed because many people show no symptoms. Untreated chlamydia can lead to pelvic inflammatory disease, which can leave scar tissue in the fallopian tubes or uterus and ultimately result in infertility.

The experimental vaccine was created by Canadian researchers who used pieces of the bacteria that causes chlamydia to form an antigen they called BD584. The hope was that the antigen could prompt the body’s immune system to fight the chlamydia bacteria if exposed to it.

Researchers gave BD584 to mice using a nasal spray, and then exposed them to chlamydia. The results were very promising. The mice who received the spray cleared the infection faster than the mice who did not. Moreover, the mice given the nasal spray were less likely to show symptoms of infection, such as bacterial shedding from the vagina or fluid blockages of the fallopian tubes.

There are many steps to go before this vaccine could become available. The researchers need to test it on other strains of the bacteria and in other animals before testing it in humans. And, of course, experience with the HPV vaccine shows that there’s work to be done to make sure people get vaccines that prevent STIs even after they’re invented. Nonetheless, a vaccine to prevent chlamydia would be a great victory in our ongoing fight against STIs and their health consequences, and we here at This Week in Sex are happy to end on a bit of a positive note.