News Law and Policy

Yet Another Lawsuit Contests the Birth Control Benefit

Jessica Mason Pieklo

A lawsuit in Tennessee becomes the latest to challenge the contraception mandate in Obamacare.

The same day a district court judge in Washington D.C. temporarily blocked the birth control benefit from applying to a for-profit Christian bookseller a group of Roman Catholic nonprofits in Tennessee is asking a federal judge there to issue a similar order.

The lawsuit was filed by the Diocese of Nashville on behalf of the Villa Maria Manor, Mary Queen of Angels, and the St. Mary Villa Child Development Center. All three organizations at some point prior to the announcement of the birth control mandate started providing contraceptive coverage to their employees without realizing it. In response to public outcry by some religious groups over the mandate the Obama administration announced a one-year safe harbor where the mandate would not be enforced for some religious nonprofits while the administration looks at ways to try and accommodate their concerns. Because these nonprofits were already providing contraceptive coverage at the time of the announcement the insurance company determined the safe harbor provision did not apply to them.

It’s worth noting the heart of the complaint by the Dioceses is that their insurance company made the wrong decision when determining the scope of benefits available–exactly the kind of decisions health care reform seeks to address. If the Dioceses is upset about the safe harbor determination that’s an issue they need to first address with their insurance company. And if the Dioceses objects so strongly to providing comprehensive health care coverage for their employees you would think they would more closely monitor those benefits. That neither of those two things have happened speaks volumes to motivations behind these kinds of lawsuits. 

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News Contraception

Maryland Moves to the Forefront in Birth Control Access

Michelle D. Anderson

It aims to prevent insurers, nonprofit health service plans, and health maintenance organizations from requiring "a copayment, coinsurance, or prior authorization requirement" for most contraceptive drugs and services.

Maryland Gov. Larry Hogan (R) this week signed what reproductive rights advocates are calling the nation’s most sweeping and comprehensive birth control access law.

Called the Maryland Contraceptive Equity Act, HB 1005 will require insurance plans regulated by the state to offer birth control with no out-of-pocket costs, starting in January 2018.

First introduced in February, the law was one of 196 bills Hogan signed on Tuesday. It aims to prevent insurers, nonprofit health service plans, and health maintenance organizations from requiring “a copayment, coinsurance, or prior authorization requirement” for most contraceptive drugs and services.

Sponsored by Del. Ariana B. Kelly (D-Montgomery) and state Sen. Delores Kelley (D-Baltimore County), the law requires companies to provide vasectomy coverage and six months of contraception coverage at a time. It also prohibits pre-authorizations for long-acting reversible contraception methods, such as intrauterine devices.

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Maryland is now the first state to require insurers to cover over-the-counter contraceptive medications, including newer options like Plan B.

Lawmakers said the law won’t go into effect until 2018 so insurers can prepare for the 2017 open-enrollment season, the Baltimore Sun reported.

Champions of the bill, such as local Planned Parenthood officials, have noted that Maryland has a history of being at the forefront of reproductive health care, telling the Sun that the state first mandated contraceptive coverage in 1998.

Karen Nelson, president and CEO of Planned Parenthood of Maryland, called the law a “bold move” and praised the Democratic-led legislature for passing the bill.

The state’s Planned Parenthood affiliate said in a statement that the law would make Maryland the first to provide equity in contraception access for men by requiring coverage of vasectomies without co-payments.

Prior to Hogan’s signing, other states have been “implementing piecemeal provisions” rather than comprehensive laws that expand birth control access, Nelson said.

Del. Ariana B. Kelly told the Sun that the law would fill in “gaps” left by the Affordable Care Act, which only requires insurers to offer one of 18 categories of contraceptives with no co-payment. That means some people may have to pay up front for their preferred method of birth control if their insurer does not cover it.

Analysis Law and Policy

Religious Nonprofits Press Supreme Court for Full Exemption From Birth Control Benefit

Jessica Mason Pieklo

The Supreme Court ordered the Obama administration and religiously affiliated nonprofits to work out a solution to the challenges to the Affordable Care Act's birth control benefit. Not surprisingly, the religiously affiliated nonprofits refuse to do so.

In late March, the U.S. Supreme Court heard oral arguments in Zubik v. Burwell, the lead case challenging the Obama administration’s process for accommodating religious objections to the Affordable Care Act’s birth control benefit. It was apparent then that the remaining eight justices were deadlocked as to whether the process did enough to protect the religious objections of the nursing home operators and university administrators who had launched this latest round of lawsuits.

Hoping to avoid a split decision—which would subject some religiously affiliated nonprofits to penalties if they failed to follow the accommodation process and not others, depending on their appellate court circuit —the justices ordered the government and the religious objectors to try and find a solution both sides could work with and present it to the court via briefing in April. Well, the nonprofits and the Obama administration have filed that first round of briefing. And if the Roberts Court thought the religious objectors were interested in any sort of real solution to the problems posed in their lawsuits, it was mistaken. The negotiating position for the religiously affiliated challengers remains: full exemption from the requirement or bust.

In its order asking for supplemental briefing, the Roberts Court asked parties on both sides to address whether “contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” According to the nonprofits, “[t]he answer to that question is clear and simple: Yes.”

If only it were that clear and that simple.

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In the remaining 20-plus pages of the nonprofits’ brief, their lawyers set out a variety of options that could, they say, provide seamless contraception coverage while preventing the nonprofits from in any way “facilitating” the sin of providing health insurance plans that include contraception. But the thing is, none of those options are actually accommodations to the ACA’s requirement that employer-provided health insurance plans cover contraception at no additional cost or co-pay.

One of the religious objectors’ solutions, for example, is to have the government directly require insurance companies to create entirely new and separate contraception-only plans. The companies would then contact plan beneficiaries directly with information about the policy and how to enroll. These separate plans, objectors offer, could take the form of individual insurance policies or of group health plans sponsored by the government.

In other words, one option is for the government to come up with an entirely different regulatory scheme for dealing with contraception altogether. That scheme would apply to religiously affiliated nonprofits and presumably the secular for-profit companies like Hobby Lobby that petitioned the Roberts Court for the very same accommodation now regarded by objectors as too onerous for compliance.

The fact this is one option offered up by the religiously affiliated nonprofits should come as no surprise. It’s right out of the anti-choice playbook with regard to insurance coverage for abortion. As states set up their own insurance exchanges during the implementation of the ACA, anti-choice politicians were quick to put restrictions on the kinds of coverage for abortion that insurance companies could offer in individual or employer-sponsored plans. So far, 10 states ban abortion coverage generally, while 25 ban abortion coverage in their exchanges. In other words, if you happen to live in Idaho, Indiana, Kansas, Kentucky, Michigan, Missouri, Nebraska, North Dakota, Oklahoma, or Utah, you cannot purchase a health insurance plan that covers abortion. At all. Including through your employer. Meanwhile, states like Arizona, Florida, North Carolina, Virginia, and Wisconsin—just to name a few—prevent comprehensive health insurance plans that cover abortion from being sold on their state exchanges.

Do we really think that if this “contraception insurance” plan offered by the religiously affiliated institutions were to become the “solution” to these legal challenges, the result would look any different than it has for insurance coverage for abortion? Hypothetically, broad contraceptive coverage could end across the country, with many states banning the coverage altogether. This, of course, is the exact scenario the Supreme Court is hoping to avoid.

All of the objectors’ “solutions” are, in fact, just other ways of granting exemptions from the birth control benefit. In other words, they seem to be saying, if and when religiously affiliated hospitals, nursing homes, and day care centers can be treated under the law the same way as churches, synagogues, and mosques, then the lawsuits will stop.

That doesn’t sound so much like a compromise as it does a threat.

The Obama administration has until April 20 to respond directly to the petitioners’ arguments. It has already filed its own briefing arguing the process as it stands completely accommodates any religious objections in a way that balances the government’s compelling interest in promoting nondiscriminatory health insurance coverage for employees while respecting the beliefs of those who see contraception as sin.

But perhaps most importantly, the government’s brief argues that any additional tinkering with the accommodation process, rather than a ruling on the merits by the Roberts Court that the current process is sufficient, will only result in many more years of litigation. And it’s a point the petitioners pretty much concede by failing to offer up any workable compromise at all.