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Notes for: The HHS Contraception Coverage Mandate: How Did We Get Here?

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[i] The full title is “Interim Final Rules for Group Health Plans and Heath Insurance Issuers Relating to the Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.” The Interim Rules were originally released in July 2010.

[ii] The Interim Final Rules does contain a grandfather clause for already existing health insurance programs, but at the time this essay is being written it is not clear how and to whom this clause applies.

[iii] See Department of Health and Human Services, “Women’s Preventive Services: Required Health Plan Coverage Guides” available at http://www.hrsa.gov/womensguidelines/. See also “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act” available at http://www.us.kpmg.com/microsite/taxnewsflash/2011/Aug/TD-9541.pdf.

[iv] The text of Title VII is taken from Sylvia Law, “Sex Discrimination and Insurance for Contraception,” Washington Law Review 73 (1998), 374.

[v] Ibid., 374-376. Law references Newport News Shipbuilding & Dry Dock Co. v. EEOC (1983).

[vi] In the case, the Supreme Court ruled that that an employer’s choice to exclude benefits for pregnancy-related disabilities did not constitute discrimination under Title VII.

[vii] Text of the PDA taken from Craig Mandell, “Tough Pill to Swallow: Whether Catholic Institution as are Obligated Under Title VII to Cover Their Employee’s Prescription Contraceptives,” University of Maryland Law Journal of Race, Religion, Gender & Class (2008), 202-204.

[viii] Sylvia Law maintains that any employment policy “that explicitly classifies employees by their potential for pregnancy under the PDA … must be regarded, for Title VII purposes, in the same light as explicit sex discrimination.” See Law, 379-380.

[ix] Law, 381-382.

[x] Susan Stabile, “State Attempts to Define Religion: The Ramifications of Applying Mandatory Prescription Contraception Coverage Statutes to religious Employers,” Harvard Journal of Law and Public Policy, (2005), 746-747. It should be noted that Viagra is used to correct erectile dysfunction, a medical condition, unlike prescription contraceptives that block the natural functioning of the reproductive system.

[xi] Becket Fund for Religious Liberty, “Implications of Mandatory Insurance Coverage of Contraceptives for Catholic Colleges and Universities,” Studies in Catholic Higher Education (October, 2009), 3.

[xii] Equal Opportunity Employment Commission (EEOC), “Decision: Summary of Change” (December 14, 2000), available at http://www.eeoc.gov/policy/docs/decision-contraception.html. Sylvia Law makes the same argument: “The abortion exclusion [of the PDA] makes plain that Congress understood that a law prohibiting discrimination against benefits related to ‘pregnancy, childbirth, or related medical conditions’ would require coverage for abortion unless Congress specified otherwise. The abortion exclusion confirms that Congress understood that discrimination against pregnancy and related medical conditions encompassed discrimination against measures taken to avoid pregnancy. If Congress had intended to leave employers free to disfavor contraceptive services in employee benefit plans, Congress could have easily added the words “or contraception” to the abortion exclusion. Congress did not do so.” See Law, 380-381.

[xiii] Mandell, 204-205.

[xiv] Mandell, 205-206, 235-236; and Becket Fund, 4-5. Quotes from Erickson are taken from these articles. The full text of the decision is available at http://biotech.law.lsu.edu/cases/eeoc/Erickson_v_Bartell.htm.

[xv] Christopher G. Kuhn, “An EPICC Oversight: Why the Current Battle for Access to Contraception Will Not Help Reduce Unintended Pregnancy in the US,” Health Matrix (October 6, 2007), 363.

[xvi] In this case the court held that the phrase “related medical conditions” as stated in the PDA refers to pregnancy and childbirth only. Pregnancy and childbirth (which occur only after conception) are substantially different from infertility (which “prevents” conception). Thus, infertility-and by extension contraception-is not a medical condition protected by the PDA. See Jessica Hawkins, “Separating Fact from Fiction: Mandated Insurance Coverage of Infertility Treatments” Journal of Law & Public Policy, vol. 23, 203 (2007), 212-213.

[xvii] This is the argument of Michael Fragoso in “HHS Birth Control Mandate has No Legal Precedent” (March 20, 2012); available at http://www.lifenews.com/2012/03/20/hhs-birth-control-mandate-has-no-legal-precedent/.

[xviii] Becket Fund 8. See also Tamar Lewin, “Court Says Health Coverage May Bar Birth-Control Pills,” New York Times (March 17, 2007), 11.

[xix] Fragoso, “HHS Birth Control Mandate has No Legal Precedent.”

[xx] Guttmacher Institute, Insurance Coverage of Contraceptives (April 1, 2012); available at http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf.

[xxi] Becket Fund, 7-8; and Marie Hilliard, “Contraceptive Mandates and Immoral Cooperation,” in Catholic Health Care Ethics: A Manual for Practitioners, ed. Furton, Cataldo, and Moraczewski (Philadelphia: National Catholic Bioethics Center, 2009), 276.

[xxii] “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law; Final Rule,” Federal Register vol. 73, no. 245 (2008), 78071. The regulations required that recipients of certain HHS funds certify their compliance with health care provider conscience protection laws, including the Church, Coates-Snowe, and the Weldon Amendments.

[xxiii] “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws,” Federal Register vol. 76, no. 36 (2011), 9969 and 9974.

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