Fri, Jun 13 2014
One of the most watched issues before the Supreme Court this term will may turn on the question of religious freedom. But it will also likely determine how women will be able to access a key provision of the Affordable Care Act – one seeking to guarantee no-cost prescription contraception in most health insurance plans.
The justices ruling on Sebelius v Hobby Lobby Stores and Conestoga Wood Specialties Corp v Sebelius, expected by the end of this month, will decide whether those companies, and potentially all other for-profit companies, must abide by the so-called contraceptive mandate. It’s a complicated case, so here is some background.
What is the contraceptive mandate?
The health law requires that most insurance plans provide preventive care services without out-of-pocket expense to beneficiaries. The Obama administration included all FDA-approved contraceptives as part of a package of preventive services for women.
Interestingly, for many plans, this was not new. The Equal Employment Opportunity Commission ruled in 2000 that failure of employer health insurance plans to cover contraceptives was a violation of the 1978 Pregnancy Discrimination Act. But the new mandate extends that coverage to all plans, including those in the individual and small group markets, and it requires that the plans offer a specific array of contraceptive options for no cost.
More than half the states have their own “contraceptive equity” laws on the books, many of which include religious exemptions that are similar to ones included in the federal regulation.
Who must comply with the mandate?
Most plans are covered by the mandate, but the federal regulation includes several exceptions. Churches and other strictly religious employers, who primarily employ those of the same faith and whose primary purpose is religious, are exempt from the requirement.
Nonprofit, religiously affiliated organizations, such as hospitals and universities, have a separate set of rules. They do not have to provide the contraceptives directly, but must make them available to employees through a third party. Catholic Church officials as well as some others have objected to this requirement. There are at least three dozen court cases challenging those rules still pending, according to the National Women’s Law Center.
For-profit companies, however, including the plaintiffs in the cases before the Supreme Court now, are not exempt.
The owners of Hobby Lobby and Conestoga Wood are not Catholic and say they have no problem offering birth control. So what is their challenge to the mandate?
Most forms of artificial contraception are contrary to Catholic teaching. But the Green family, which owns the nationwide craft chain Hobby Lobby, are evangelical Christians. And the Hahn family that owns Pennsylvania cabinet-maker Conestoga Wood Specialties are Mennonites. Both families already offer most forms of birth control as part of their health plans.