Contraception Coverage and the Constitution

October 29, 2012

In the midst of all the election coverage—the daily hoopla and scoring of who is up and who is down—it would be very possible to miss an extremely important court decision on the Affordable Care Act, regarding the contraceptive coverage mandate included in the law’s implementation rules.

On September 28, 2012, in a case brought by a Missouri mining company, the federal district court in Missouri ruled the contraceptive coverage mandate constitutional. Judge Jackson’s decision was important and thoughtful.

Ever since the Obama administration issued the requirement for contraceptive benefits to be included as preventive services (with some exceptions for houses of worship and accommodations for religiously affiliated organizations), the constitutionality of this requirement has been under discussion. Numerous lawsuits have been filed. (A side note on this: those who have concerns about expanding coverage for birth control might want to take a look at a new study that shows access to birth control significantly reduces abortions).

The decision by the Obama administration to mandate birth control coverage, along with action in state legislatures around the country designed to put limits on abortion clinics and the like, has brought contraception back into the public dialog. Many women alive today weren’t even born when this issue was last in the public debate to this degree.

The core issue in the legal cases is whether or not the birth control rules “substantially burden the faith” of the opponents by requiring them to offer benefits for birth control in their health plans.

Judge Jackson’s decision was specific to the religious issues involved in the case. She said:

The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [an employer’s health] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. . . . [Federal religious freedom law] is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. [It] does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own. . . .

[T]he health care plan will offend plaintiffs’ religious beliefs only if an employee (or covered family member) makes an independent decision to use the plan to cover counseling related to or the purchase of contraceptives. Already, [plaintiffs] pay salaries to their employees—money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.”

While press coverage of the case has focused issues of religious liberties, the issue is much broader than that. Federal and state governments mandate health benefits for a variety of services and diseases. Everything from mental health to autism services have been legislatively required to be covered in health plans. And while these other mandates haven’t raised the same kind of opposition as the birth control mandate, they could. If the birth control mandate were determined to be unconstitutional, it could open the door for challenges to other mandated benefits as well.

Judge Jackson’s ruling will be much studied by other courts considering these cases. Her decision is one that continues the path this country has long been on: using legislation and regulation as a means of determining what should be included in health care coverage. Judicial decisions that go in the other direction could raise questions well beyond the issue of contraception, and risks well beyond women’s health.