24 January 2013
In August 2011, the Department of Health and Human Services (HHS) issued an interim final rule concerning contraception. The rule, prompted by the Patient Protection and Affordable Care Act, requires health insurance plans to offer all FDA approved forms of contraception free of additional charge. The rule exempts some religiously affiliated non-profit organizations with direct ties to their religion, such as churches. The Department’s ruling caused many to worry about government coercion of religious liberties, including the Archbishop of Baltimore William Lori, who voiced his opinion in a letter to the Editor of the NY times.
The HHS received immediate backlash for the mandate on contraception, receiving thousands of letters opposing the rule. Opponents of the rule argue that under the rule businesses with religious objections, which did not qualify for the exemption, would be forced to violate moral convictions by providing insurance sponsored contraception for their employees. In response to the backlash, the HHS amended the rule to specify that all such religious and morally opposed organizations would have one additional year to comply with the mandate before being penalized. The new one year time frame does not affect the non-profit religious organizations initially exempt. The momentary fix offered by the HHS did little to silence the opposition, and only provoked legislative action from Congress and state legislatures alike.
Supporters of the HHS rule have provided several counter attacks, with some claiming the opposition has waged a war on women. Colorado Senator Morgan Carroll (D), voiced her opinion on the floor of her state legislature saying, "For the women that are here, for us this is not political. This is personal. It is about our rights.” To Carroll, this was not an issue of government overreach, but rather an issue of protecting women’s rights.
To add to the debate, federal courts have decided cases favoring both sides. As recent as October of 2012, a federal Judge in Michigan ruled in favor of a local business whose owner, a Catholic, opposes contraception and therefore refused to offer contraception to his employees. However, many other federal courts have upheld the mandate. The inconsistency in federal ruling as well as vigorous debate in D.C. has left room for the opposition to fight back.
Opposition to the HHS rule has fought back by proposing legislation that seeks to repeal the mandate. Currently working its way through Congress is S 2092, or the “Religious Freedom Protection Act of 2012”. In this bill, Congress states that “religious freedom and liberty of conscience are inalienable rights enshrined in the Declaration of Independence and the First Amendment to the United States Constitution.” This bill constituted Congresses second attempt to challenge the mandate, the first being the failed ‘Blunt amendment.’
Many states already require contraception coverage under existing law; however a handful of states began to fight the expansion of federal power as soon as possible. Colorado, Georgia, Arizona, Idaho, Missouri, New Hampshire all presented legislation concerning a ‘conscience exemption rule’. The fate of the legislation in each state directly correlated to party make-up of the legislature.
Georgia (SB 460), New Hampshire (HB 1546), and Arizona (HB 2625) were among the states that passed legislation exempting those with conscience objections to the mandate. These states claim to have secured religious freedom for those who have conscience objections to birth control, but in the process have defied the will of the national government. These three states have Republican controlled legislatures and saw little resistance passing the measures.
Wyoming (HJR 7) passed an appeal to Congress opposing the contraceptive mandate. The bill, which has passed the Republican House, is now waiting approval from the Republican Senate. It urges the president to repeal the HHS mandate all together. Missouri (SB 749) passed a similar resolution but it was later vetoed by the Governor.
Colorado’s Democratic Senate voted down an act (SM 3) that would have sent Colorado’s support to Congress in their effort to overturn the HHS mandate. Colorado’s house is Republican controlled; however, the Democratic led Senate killed the bill as soon as possible. On the contrary, Colorado bill SB 93, which would require medical facilities that refuse to perform abortions to educate patients of near by faculties that do, passed the Democratic Senate but will likely die out in the Republican House.
Following support for the mandate, Washington (HB 2330) passed legislation pre-empting the mandates enforcement. The bill requires coverage not only for contraception but for abortions as well. Washington was able to pass this measure due to its democratically controlled Senate.
As you can tell, there are strong beliefs on either side of the contraception issue. Each state may have its own opinion on the subject, but the ultimate say lies with Congress or the Supreme Court. Most of the legislation passed by the states is in the form of memorials or resolutions and do not have the force of law.
The 2012 legislative cycle has left many debates surrounding the contraception mandate unresolved. Federal courts as well as state and national legislatures have yet to reach a consensus on the issue of health care provided contraception. The lack of consistent application of the mandate has caused many problems. Until there is a clear, consistent interpretation of the mandate with the backing of law, the debate will surely continue.
Hunter Ratcliff is a student at University of Texas at Austin majoring in Government. He interned with Project Vote Smart in the Fall of 2012.