In the opening months of 2012, the Obama administration released and subsequently modified guidelines outlining an employer’s responsibility to provide insurance coverage for contraception. The original rule drew widespread criticism, prompting the administration to later amend it. 

 

On January 20, 2012, Department of Health and Human Services (HHS) Secretary Kathleen Sebelius announced that the agency permanently adopted its interim final rule on the scope of women’s preventive services that insurance companies must cover in full, without copayments or deductibles.  The guidelines on insurance coverage for women’s preventive services are part of a comprehensive overhaul of insurance coverage for preventive services mandated by the Patient Protection and Affordable Care Act (P.L. 111-148), commonly referred to as health care reform. Under the legislation, “[p]reventive services that have strong scientific evidence of their health benefits must be covered [by insurance] and plans can no longer charge a patient a copayment, coinsurance or deductible for these services when they are delivered by a network provider.”[1]

 

Following the passage of health care reform legislation in March 2010, HHS requested that the independent Institute of Medicine (IOM) “review what preventive services are necessary for women’s health and well-being and should be considered in the development of comprehensive guidelines for preventive services for women” in order to determine which women’s preventive services should be covered.[2] The IOM established the Committee on Preventive Services for Women, which conducted an exhaustive review of existing preventive care guidelines, expert recommendations, medical research, and public comment. The committee then proposed the women’s preventive health services guidelines that HHS subsequently adopted.  The following preventive services must be covered by insurance with no out-of-pocket costs: annual well-woman visits; gestational diabetes screening for pregnant women; DNA testing for human papilloma virus (HPV) in women over age 30; counseling for sexually transmitted infections (STIs); counseling and screening for HIV; contraceptive methods approved by the U.S. Food and Drug Administration (FDA) and contraceptive counseling; counseling, support, and supplies for breastfeeding women; and domestic violence screening and counseling.

 

The contraceptive coverage provision first prompted backlash from religious groups, particularly the Roman Catholic Church, when it was issued in August 2011. The coverage mandate would have required most employers who provide health insurance for their employees to include coverage for all methods of contraception approved by the FDA. Only “religious employers”—non-profit organizations that havethe inculcation of religious values as their primary purpose, employ mostly people who share its religious tenets, and largely serve people who share their religious tenets—would have been exempt from that mandate.[3] Religious leaders pushed back and urged President Obama to broaden that exemption to include all religiously affiliated institutions; however, the Obama administration determined that a “religious employer cannot qualify for the exemption if it employs or serves large numbers of people of a different faith.”[4] Religiously affiliated employers that currently do not provide insurance coverage for contraceptives would have had one year to comply with the regulation.[5]

 

Republican presidential candidates first denounced the final decision in late January, followed by religious leaders and Congressional Republicans.  In order to quell the backlash, the Obama administration signaled its willingness to work with those opposed to the guidance and amend it to address their concern that requiring a religiously affiliated institution to provide insurance coverage for contraception would violate the institution’s religious freedom, if use of artificial forms of contraception goes against its religious beliefs.   

 

President Obama announced on February 10, 2012, that the rule would be modified to exempt church-affiliated institutions such as colleges, hospitals, and social service agencies from the requirement to provide contraceptive coverage.  Rather, an objecting institution’s insurance provider will be required to cover all FDA-approved contraceptive methods without charging an additional premium. 

 

The Obama administration’s compromise received mixed reactions from advocates on either side of the debate.  Many organizations believed the administration’s decision was a reasonable modification of the proposed rule that secures access to contraceptive coverage for women employed by a religiously affiliated organization while also providing a religious exemption.  The Catholic Health Association praised the compromise as one that “protects the religious liberty and conscience rights of Catholic institutions.”[6]  The organization also affirmed that the “framework developed has responded to the issues we identified that needed to be fixed.”[7]  A number of reproductive rights groups also applauded the decision.  Planned Parenthood Federation of America remarked that “the compliance mechanism does not compromise a woman’s ability to access these critical birth control benefits,” but also identified the need for organizations to remain “vigilant in holding the administration and the institutions accountable for a rigorous, fair and consistent implementation of the policy.”[8]

 

Jon O’Brien, president of Catholics for Choice, hailed the original decision as a “victory for common sense and scientific advice in the interests of the common good.” He also praised the Obama administration for “[standing] with those who support religious liberty and believ[ing] in giving women the freedom of conscience to make their own reproductive health decisions.”[9]  Following the compromise, however, O’Brien sharply criticized the administration’s decision as one that “relies on insurance companies doing the right thing, and gives victory #1 to the bishops on their ‘religious liberty’ shopping list.” He also expressed his disappointment “that the White House did not agree to extend the new plan to churches and others who were granted an exemption.”[10]

 

On the opposing side, the United States Conference of Catholic Bishops criticized the mandate for allowing only religiously affiliated non-profit employers to refuse to provide contraceptive coverage, arguing that any employer whose personal religious beliefs preclude the use of contraception should be exempt from providing coverage as well. Catholic individuals do not seem to share the bishops’ outrage—98 percent of sexually active Catholic women have used a form of contraception banned by the Vatican and 57 percent of all Catholics supported the compromise measure.[11]

 

Although employees of religiously affiliated colleges and universities will either receive insurance coverage for contraceptives from their employers or directly from their insurance company, the Obama administration has yet to decide whether those institutions must provide that coverage for their students. Religiously affiliated colleges and universities currently are not required to include coverage for contraceptives in their student health plans, forcing students to go to outside doctors and clinics and pay for the entire cost of the medication.[12] While a proposed rule issued in February 2011 indicated that student health plans would be classified as individual health insurance plans, it has yet to be finalized. More than 30 advocacy groups recently sent a letter to Secretary Sebelius urging her to classify student health plans as individual health insurance in the final rule, as student health plans would then be required to cover the cost of contraceptives. Some schools, however, have already resisted this mandate—Belmont Abbey College, which is Catholic, and Colorado Christian University have filed lawsuits against HHS arguing that being required to provide coverage for contraceptives infringes on their right to religious freedom.[13]

 

Unsatisfied with the administration’s compromise, several members of Congress currently are promoting legislative action to vitiate the contraception coverage mandate.  Please consult future SIECUS Policy Updates for information on the progression of those efforts. 

 

Please click here to view all January 2012 Policy Updates

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