There's been no let-up in the debate about the Obama administration's rule requiring most employers to provide prescription birth control to their workers without additional cost.
Here's the rub: The only truly novel part of the plan is the "no cost" bit.
The rule would mean, for the first time, that women won't have to pay a deductible or copayment to get prescription contraceptives.
"Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford," says Sarah Lipton-Lubet, policy counsel with the ACLU. "But as a legal matter, a constitutional matter, it's completely unremarkable."
In fact, employers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That's when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act. That law is, in turn, an amendment to Title VII of the 1964 Civil Rights Act, which outlaws, among other things, discrimination based on gender.
Here's how the EEOC put it at the time: "The Commission concludes that Respondents' exclusion of prescription contraceptives violates Title VII, as amended by the Pregnancy Discrimination Act, whether the contraceptives are used for birth control or for other medical purposes."
But it's not only the EEOC that has ruled on the issue. More than half the states have similar "contraceptive equity" laws on the books, many with religious exceptions similar or identical to the one included in the administration's regulation.
That's no accident. "The HHS rule was modeled on the exceptions in several state laws, including California, New York and Oregon," says Lipton-Lubet of the ACLU.
There are now lawsuits challenging the constitutionality of the policy, including a new one filed on behalf of the religious television network EWTN. But the exemptions have already been tested in court, at least at the state level.
In 2004, the California Supreme Court upheld that state's law, in a suit brought by Catholic Charities, on a vote of 6-1.
The court ruled that Catholic Charities didn't qualify as a "religious employer" because it didn't meet each of four key criteria (which, by the way, are the same as those in the new federal regulation):
- The organization's primary purpose is "the inculcation of religious values."
- It primarily employs people of that religion.
- It primarily serves people of that religion.
- It's a registered nonprofit organization.
Two years later, in 2006, New York's top state court rejected a claim by Catholic Charities and several other religious groups that the state's contraceptive coverage law discriminated against them because it exempted churches but not their religiously affiliated groups.
"When a religious organization chooses to hire nonbelievers, it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit," the justices wrote.
Said Lipton-Lubet, "In both the California and New York cases, Catholic Charities made arguments very similar to the ones being made now with respect to the HHS rule. Those arguments failed in that litigation, and they're no more persuasive here."
Lawyers for religious litigants, however, say they think they may stand a better chance challenging the federal rule, particularly given a recent unanimous Supreme Court decision exempting religious employers from employment discrimination laws.
Opponents of the Obama administration's rule are also hoping they can find the votes to overturn it in Congress.
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