Expand access, not exemptions

By Jessica Arons, director of the Women’s Health and Rights Program at American Progress.
This blog was originally posted at Think Progress.

As the Obama Administration debates whether to expand an exemption to a new health insurance requirement to cover all FDA-approved methods of contraception, there are some important facts to keep in mind:

• The average woman spends five years pregnant, postpartum, or trying to get pregnant, and at least 30 years trying to avoid pregnancy.  
• More than 99 percent of women of reproductive age who have had sexual intercourse have used at least one method of family planning.  
• Contraception is the most commonly prescribed medication for women ages 18 to 44
• Eighty-eight percent of voters support access to birth control
• Approximately three-quarters of Americans agree that insurance should cover contraception
• Fifty-eight percent of pill users rely on oral contraception at least in part for non-contraceptive reasons
• Eighteen percent of women on the pill reported inconsistent use, such as skipping doses, as a cost-cutting measure

Under the Affordable Care Act, or the ACA, women will benefit from greatly expanded access to contraception—which has been shown to improve health. But this important consumer protection is at risk of being undermined by an unreasonably expansive religious exemption.

Congress recognized that cost was a major barrier for women in accessing care. In response, it passed the Women’s Health Amendment, which required health plans to cover preventive services for women with no cost-sharing such as co-pays. Contraception was included among the comprehensive list of services deemed preventive based on an assessment of their effectiveness by the Institute of Medicine, an independent body of experts that issues unbiased, evidence-based guidance on matters of importance to public health.

Indeed, the Department of Health and Human Services asked the IOM to determine which services should be covered so that there would be no question of political interference. HHS then adopted the IOM’s recommendations in full—but with one important exception. HHS exempted from the contraceptive-coverage requirement those organizations whose purpose is to promote religious values, who primarily employ and serve persons who share their religious tenets, and who qualify for a religiously-related non-profit tax status—in sum, churches and other houses of worship, church conventions, and the religious activities of religious orders.

But this exemption was not enough for anti-contraception forces. They went on the attack and pushed for a much wider exception that would include universities, hospitals, social service organizations, and potentially any religiously-affiliated non-profit organization.

While a main purpose of the ACA was to ensure that everyone has the same guarantee of a baseline set of health care services, the number of people who work for an institution that meets the proposed exemption is relatively small. The same cannot be said, however, for the numerous religiously-affiliated organizations in our society that employ people from many different faiths, as well as those with no faith, and serve the general public. Almost 800,000 people work in Catholic hospitals alone. Religious universities employ and teach around 2 million. Then there are the hospices, nursing homes, and non-profits that help victims of trafficking, people living with AIDS, children in need of adoption, and people struggling with addiction—fields that employ high numbers of women.

All of these workers, students, and their dependents would be affected by an expanded religious exemption. Millions of women could have their consciences—that tell them using birth control is the morally right thing to do—overridden by those who privilege an institution’s tenets over an individual’s. These institutions may be guided by sincere, religiously-informed principles, but they engage in secular activities, such as providing an academic education or long-term care services, and they are sought out for those services, not for religious teachings.

It is for these reasons that the proposed HHS exemption mirrors the most common exemption in the 28 states that already require employers to offer contraceptive coverage if they cover other prescription drugs and devices. And it is for those reasons that courts have upheld challenges to those laws, finding that a neutral, generally applicable law not targeted at religion does not burden the right to free exercise of religion. In fact, there is the possibility that a broader exemption would violate the law. The Equal Employment Opportunity Commission has found that the exclusion of prescription contraception from an employer-sponsored health plan constitutes sex discrimination because it only burdens women.

The small minority in this country that opposes contraception is entitled to its opinion and should be free to preach it as often as it wants. But this very dispute belies the fact that only a fraction of followers practices what is being preached. Only 2 percent of sexually active Catholic women, for instance, have not used some form of modern contraception. Contraception opponents are resorting to coercion where persuasion has failed.

Freedom of conscience is a bedrock American principle and religious exemptions can be a useful way to protect conscience, but they must be employed judiciously. Otherwise, issues of conscience become trivialized and turn into excuses for discrimination. If religious employers are allowed to object to contraceptive coverage now, will they one day be able to opt out of covering HIV services, HPV tests, health care for transgendered people, blood transfusions, or end-of-life care? If we are not careful, claims of religious liberty could be exploited by religious organizations to justify noncompliance with laws they prefer to ignore.

President George W. Bush tried to adopt an overly expansive “conscience clause” right before he left office. The Obama Administration wisely rescinded most of that rule, “based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services….” This should not be an occasion to reverse course. The pending regulation is the first to interpret and implement the Women’s Health Amendment and will establish an important precedent. Imagine where a more conservative Administration would go if we start with an expansive loophole that waters down the ACA’s important protections.

Most of us want to live in a world where all children are wanted, nurtured, and adequately cared for. Birth control enables women to plan their pregnancies and avoid being placed in the difficult position of having to decide whether to continue or end a pregnancy for which they feel unprepared. Family planning also results in better health outcomes for women and their children—a woman who has a planned pregnancy is more likely to be in better health when she gets pregnant and more likely to seek prenatal care, and children who are born at least two years apart are healthier, and possibly smarter.

A broad religious exemption for contraceptive coverage would go too far, depriving millions of women of an important health benefit. Instead of expanding exemptions, we should be expanding access to affordable care.