A good article in the New England Journal of Medicine, puts this whole issue into a bit of perspective. Definitely worth it to take 5 minutes and read through this.


by R. Alta Charo, J.D.

N Engl J Med 2012;366:1361-1364April 12, 2012

link: http://www.nejm.org/doi/full/10.1056/NEJMp1202701




Foster Friess, a conservative political donor, recently discounted the importance of insurance coverage for contraceptives, saying, “Back in my days, they used Bayer Aspirin for contraception. The gals put it between their knees, and it wasn't that costly.” Though his comment stunned interviewer Andrea Mitchell, it at least focused on the issue of contraceptives. Most critics of the federal effort to ensure access to contraceptives have reframed the issue as a war on religion. And as Georgetown University theologian Tom Reese told National Public Radio in early February, “If the argument is over religious liberty, the bishops win. If the argument is over contraceptives, the administration wins.” Indeed, a 501(c)(4) advocacy group, “Conscience Cause,” has already been formed to leverage media to spur legislative action and promote the view that this debate is not
about contraception, but rather about “freedom and the protection of our religious values.”

Since the average American woman spends 5 years pregnant (or trying to be) and 30 years trying not to get pregnant, nearly 99% of sexually active women have used birth control. And the most effective contraceptives — such as the birth-control pill and intrauterine devices (IUDs) — are unavailable except by prescription, which makes them part of the health care system rather than merely a lifestyle choice akin to eschewing cosmetics. That such contraceptives constitute health care is even clearer when one considers the reduction of maternal and neonatal morbidity and mortality from the spacing out of births or the use of oral contraceptives for conditions ranging from acne to uterine fibroid tumors.

But contraceptives can be pricey. Birth-control pills can run $600 per year, and an IUD may
cost $1,000, so many women favor less expensive, albeit less reliable, options such as condoms and even withdrawal. Insurance coverage allows women to have a genuine choice. As the Institute of Medicine recommended, under the Affordable Care Act, insured women will qualify for contraceptives without copayments, as part of a range of preventive services.

The Obama administration exempted houses of worship from the requirement of offering employees health insurance covering contraception — a more generous policy than those of many of the 28 states already requiring insurers to cover contraceptives (see below image for State Policies on Contraceptive Coverage). But the exemption initially didn't apply to institutions such as
hospitals and universities whose fundamental purpose was nonreligious, even if the institution was affiliated with a religious sect. Such institutions are typically subject to generally applicable laws for their nonreligious functions, such as civil rights laws prohibiting employment discrimination outside the context of ministerial functions. And the Equal Employment Opportunity Commission had already determined that singling out contraception from prescription-drug and preventive-care coverage is a form of sex discrimination forbidden by Title VII of the Civil Rights Act, with no exemption for religious employers. Nonetheless, amid growing conflict, the administration expanded its exemptions to include religiously affiliated hospitals and universities, deciding instead that their contracted insurance companies would be required to cover contraceptives without any financial support from the institutions. The goal was to ensure that women have all the recommended preventive-care coverage while eliminating even tenuous financial connections between religious employers and contraception benefits.

Yet at least seven states — Florida, Michigan, Ohio, Oklahoma, Nebraska, South Carolina, and Texas — are joining lawsuits to overturn the requirement. And some states are considering bills that would allow insurance companies to ignore the federal rules. Measures in Idaho, Missouri, and Arizona would extend the exemptions to secular insurers or businesses, and the Senate defeated a similar measure by a narrow margin.

Despite the administration's accommodations, the policy's opponents have reframed it as discrimination against religious organizations — even against religion itself. It has thus become yet
another simmering health care controversy like the debate over religiously based refusals to prescribe or dispense contraceptives — a debate that remains unsettled, as witnessed by the yo-yo pattern of decisions in the challenge to Washington State's requirement that pharmacies dispense contraceptives. (The latest decision favored the pharmacists who did not want to dispense contraceptives on grounds of personal conscience or religion; the case is again heading for appeal.) But the current controversy is not about a personal reluctance to directly facilitate another person's action that one believes is immoral, even if the actor does not. Instead, it relates to passive forms of alleged complicity that are far more tenuous, and it touches on the ways in which a multicultural society cross-subsidizes the choices of its varied citizens. In other words, employee benefits are now embroiled in the struggle for the public square.

There are at least two competing views about how to organize our public institutions, public places, and public duties. In one vision, individuals may exercise their freedom to act on their religious dictates even if their acts limit access to public goods by people who follow a different
creed. A police officer, for example, argued in federal court that he ought not to be required to provide protection to a casino because he believed gambling was sinful. The competing view is that people performing public functions must make themselves available to everyone, regardless of personal creed — for example, an airport taxi driver must pick up passengers carrying
duty-free alcohol even if he or she deems drinking to be sinful. The competition for the public space and the question of who may be forced to make some sacrifice was captured well by Florida Senator Marco Rubio, who argued that “the government can't force religious organizations to abandon the fundamental tenets of their faith. . . . If an employee wants birth control, that worker could . . . just choose to work elsewhere.” Similar reasoning underlies many arguments for the acceptability of service denials: the patient should simply go elsewhere. But it is far from a solution when sectarian-hospital emergency departments refuse to provide emergency contraception to rape victims or to perform health-preserving surgeries after incomplete miscarriages. In the past decade, religiously affiliated organizations owned nearly one in five U.S. hospital beds, and doctrinal restrictions at secular hospitals are growing because of increasing mergers with religious hospital systems. A vision of a public space in which every religious practice blooms might quickly become one in which a single religious doctrine is imposed.

Institutions opposing the new policy argue that they're still financially connected to the contraceptive benefit, in contradiction to their doctrine. But Americans don't usually succeed in
claims that the use of their funds in contravention of their religious views violates their constitutional or statutory rights: tax resisters, for instance, have been swatted down by the courts, even when they were objecting to state-ordered killing in the form of capital punishment or war. And the objections in this instance are yet more tenuous: Catholic hospitals and universities are not required to pay for birth-control coverage. Nonetheless, coverage in the general benefit package is considered unacceptable complicity. By this logic, any benefit that an employee might use to commit an act contrary to institutional doctrine could be withheld — including, it would seem, ordinary salary.

Given the lack of past controversy over state laws on contraceptive insurance coverage and the spate of recent efforts to constrict reproductive rights — ranging from “personhood amendments” granting fertilized eggs the same legal rights as liveborn children, to mandatory transvaginal
ultrasonography before consenting to an abortion, to the defunding of screening for cancer and sexually transmitted diseases at organizations that separately provide privately funded abortion services — some observers characterize the debate over contraceptive coverage as a war on women. But others point to litigation about prayer in schools, Christmas displays on public lands, and requiring U.S. aid organizations to offer contraceptive services to rape victims in war zones as
evidence of a war on religion.

Let's recognize that the current debate is about public health and contraception. But at the same time, given the battle over framing, let's also take seriously the more enduring question about our public space: whether every religious institution and adherent is free to act to the point of imposing on others, or whether every individual is free from being imposed upon to the point of stifling some who would act. This debate deserves more than partisan sound bites and slogans. Perhaps Friess wasn't too far off, and the best cure for today's contraceptive headache is for the entire country to take two aspirin and lay off until after the election.