The guidelines and regulation issued by the HRSA and HHS extend beyond any coercive measure enacted by the states and compromise duly-enacted state laws protecting the conscience of healthcare payers.
- Mandated coverage for “contraceptives” is unprecedented in nearly half the states.
- Even those states that have adopted so-called “contraceptive equity” laws generally only apply their requirement to insurance plans that offer prescription coverage. (Therefore allowing an employer the option, albeit a difficult choice, to drop prescription coverage altogether.)
- In addition, multiple states explicitly exclude certain specific FDA-labeled “contraceptives” from its mandate.
- Moreover, many states with religious employer exemptions adopt a more expansive definition than that provided for by the HHS regulation.
- Further, the mandate stands in direct opposition to the duly enacted law of Mississippi which protects the conscience rights of healthcare payers.
Thus, the HRSA mandate and narrow HHS “accommodation” supplants the reasoned judgment of the states with an ideologically-driven, coercive measure.
For example, the state of Mississippi has chosen to statutorily protect the conscience rights of its healthcare payers. The Mississippi law (based on AUL’s model language) is comprehensive, and its right to decline to pay applies to any healthcare service that violates the payer’s conscience, “A health-care payer has the right to decline to pay, and no health-care payer shall be required to pay for or arrange for the payment of a health-care service that violates its conscience.”[i] The mandate imposed by HRSA stands in direct opposition to Mississippi’s duly-enacted law.
HHS is correct that the vast majority of states that have enacted contraceptive coverage laws contain an exemption for religious employers. However, many of these states define “religious employer” more broadly than HHS, and thus the mandate and regulations would trump their state protections as well. For example, Nevada law exempts insurers “affiliated with a religious organization,”[ii] while Missouri exempts anyone (not limited to religious employers) with a “moral, ethical, or religious” objection[iii] and any health carrier “owned, operated, or controlled … by an entity that is operated pursuant to moral, ethical or religious tenets…”[iv] Nevada and Missouri’s reasoned judgment to protect the conscience rights of their citizens would be eviscerated by the HHS rule.
Moreover, in the states that have adopted the narrow definition of religious employer proposed by HHS, their contraceptive mandates only apply to plans that offer prescription coverage. That means that employers still have the choice (admittedly a tough decision) to not offer prescription coverage. In contrast, the HRSA guidelines apply to nearly all insurance plans and the Affordable Care Act does not offer many organizations and individuals (without a penalty) a similar escape from its coercive measure. Even currently “grandfathered” plans will be subjected to the mandate if any number of changes is made to their plans.[v]
In addition, many states do not require coverage for all FDA approved contraceptives and multiple states have explicitly chosen to reject certain so-called
“contraceptives” from their mandates. For example, Arkansas clearly excludes from its mandate so-called “emergency contraception”: “Nothing contained in this subchapter shall be construed to require any insurance company to provide coverage for an abortion, an abortifacient, or any United States Food and Drug Administration-approved emergency contraception.”[vi] North Carolina likewise excludes emergency contraception,[vii] while Texas’ law excludes “abortifacients or any other drug or device that terminates a pregnancy.”
Other state laws clarify that their mandates are not to include abortion-inducing drugs. Georgia law, for example, states, “Likewise, nothing contained in this Code section shall be construed to require any insurance company to provide coverage for abortion.”[viii] Maine’s law states that the mandate “may not apply to prescriptions designed to terminate a pregnancy.”[ix] Rhode Island’s law includes, “[p]rovided, that nothing in this subsection shall be deemed to mandate or require coverage for the prescription drug RU 486.”[x] Keeping in mind that these laws, explicitly excluding the abortion drug RU-486, pre-date the approval of a substantially similar drug, ella, the HRSA/HHS mandated coverage preempt the principles, if not the letter, of these laws.
In addition, while the HRSA guidelines require inclusion of sterilization as a covered service, the Illinois’ contraceptive mandate states, “Nothing in this Section shall be construed to require an insurance company to cover services related to permanent sterilization that requires a surgical procedure.”[xi]
Contrary to the HHS regulation’s insinuation that its “accommodation” draws it in line with the majority of states, the HRSA and HHS guidelines and regulation are a nation-wide evisceration of existing state laws.
[i] Miss. Code Ann. § 41-107-9 (2004).
[ii] Nev. Rev. Stat. § 689A.047 (1999).
[iii] Mo. Rev. Stat. § 376.1199 (2001).
[v]See http://www.ncsl.org/documents/health/GrandfatheredPlans.pdf. (last visited Sept. 27, 2011). It is estimated that anywhere from 20 to51 percent of small employer plans and 23 to 66 percent of large employer plans will retain their “grandfather” status by 2013. See http://www.healthreform.gov/newsroom/keeping_the_health_plan_you_have.html.
[vi] Ark. Stat. Ann. §23-79-1103-1104 (2005).
[vii] N.C. Gen. Stat. § 58-3-178 (1999). The law excludes “The prescription drug marketed under the name “Preven” or any “equivalent drug product” as defined in G.S. 90‑85.27(1).”
[viii] Ga. Code § 33-24-59.6 (1999).
[ix] Me. Rev. Stat. Ann. Tit. 24 §2332-J (1999).
[x] R.I. Gen. Laws § 27-18-57 (2000).
[xi] Ill. Rev. Stat. ch. 215 § 5/356z.4 (2003).