The Corner

Yes, It’s Unprecedented

Igor Volsky, in his recent blog at Think Progress, attempts to disprove the claim that the Obama administration’s Department of Health and Human Services mandate that private insurance plans provide coverage for all FDA approved contraceptives is an “unprecedented attack on religious liberties” by stating that on“closer examination” the conscience language of the HHS mandate “closely mirrors the existing provisions in at least five states.”

Noting already that he can identify only five states with a seemingly similar narrow “religious employer exemption,” Volsky goes on to boldly claim that for all 28 states that have mandated contraceptive coverage in some fashion “the only change is [that] now they must cover the full cost.” He even wants the Obama administration to get a pat on the back for allegedly “expanding conscience protections in eight states, where all religious institutions are required to offer birth control coverage.”

A closer look, however, shows that Volsky may not have closely examined the facts.

First, it should be noted that mandated coverage for contraceptives is actually unprecedented in nearly half the states. Even if Volsky was right on his other claims (which he is not), that in itself is undoubtedly a sweeping change.

Second, many of the states with contraceptive mandates provide broader exemptions than HHS, and thus the HHS mandate and corresponding regulations would trump reasoned state protections. For example, Nevadalaw exempts insurers “affiliated with a religious organization,” while Missouri exempts anyone (not limited to religious employers) with a “moral, ethical, or religious” conscientious objection and any health carrier “owned, operated, or controlled . . . by an entity that is operated pursuant to moral, ethical or religious tenets.” Missouri’s reasoned judgment to protect the conscience rights of all its citizens would be eviscerated by the HHS rule.

If that still does not sound like an unprecedented attack on religious liberty and the freedom of conscience, consider further: In the handful of states that have adopted a narrow definition of religious employer supposedly “mirrored” by the Obama administration’s regulation, or those that fail to contain an explicit exemption, their contraceptive mandates only apply to plans that offer prescription coverage. That means that employers still have the choice (admittedly a tough decision) to self-insure their prescription-drug coverage or to drop prescription coverage altogether.

In contrast, the HHS mandate applies 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.

Volsky also ignores another significant change beyond “covering the full cost.” 

Many states do not require coverage for all FDA approved contraceptives and multiple states have explicitly chosen to reject certain FDA labeled “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.” North Carolina likewise excludes so-called emergency contraception, while Texas’s 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.” Maine’s law states that the mandate “may not apply to prescriptions designed to terminate a pregnancy.” Rhode Island’s law provides that “nothing in this subsection shall be deemed to mandate or require coverage for the prescription drug RU 486.” Keeping in mind that these laws, explicitly excluding the abortion drug RU-486, pre-date the approval of a substantially similar drug, ella, that the FDA has labeled as “contraception,” the HHS mandated coverage preempts the principles, if not the letter, of these laws.

Thus, the narrow HHS “accommodation” supplants the reasoned judgment of the states with an ideologically-driven coercive measure.

Contrary to the repeated insinuation that its “accommodation” puts it in line with the majority of states, “on closer examination” the HHS mandate proves to be not only an unprecedented attack on religious liberties, but a nation-wide evisceration of existing state laws protecting the freedom of conscience.

— Anna Franzonello is Staff Counsel for Americans United for Life.

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