Plans Threaten Right to Choose What’s Right
BY John Burger
September 8-14, 2002 Issue | Posted 9/8/02 at 2:00 AM
OLYMPIA, Wash. — Washington state's attorney general has stated that prescription contraceptives cannot be withheld from health-insurance plans because of an employer's religious or moral objections.
Christine Gregoire announced the ruling Aug. 12 after an inquiry from the insurer of Sacred Heart Medical Center in Spokane, a Catholic hospital.
The Washington Catholic Conference is “working with” the state's insurance commissioner to make sure Catholic institutions will be able to exercise their right to opt out of mandates that violate Catholic teaching, said Kevin Glackin-Coley, the conference's associate director. “It's unclear when a final determination will be made,” he said.
The impending dispute highlights an upward trend in coverage of birth-control drugs and devices (and an erosion of the ability to opt out on moral and religious grounds) and the inevitable clash with those who follow Catholic teaching. Because of new laws, rulings and employee lobbying, more and more employers are paying for the coverage.
The Wall Street Journal reported that 78% of insured workers nationwide are now covered for oral contraceptives, up from 64% the year before. Over the last few years, some 20 states have passed laws requiring insurance policies with prescription drug plans to cover contraceptives.
Washington estimates its new mandate, which was not enacted by legislature but by an administrative rule issued by the state's insurance commissioner, extends birth-control coverage to at least 200,000 more women.
Most of the 20 states allow exemptions based on religious or moral objections, but some are so narrow that Catholic hospitals and universities would have to pay for contraceptive coverage.
Both California's law and New York's “pill bill,” which Gov. George Pataki is poised to sign, permit an optout only to institutions whose mission is primarily one of spreading the faith and where a majority of employees and people it serves share that religion. Catholic Charities of Sacramento, Calif., is challenging the mandate in court. And in New York, where the original Assembly version of the bill permitted no conscientious exemption, the Catholic Conference is keeping an eye on the California case and is considering a similar suit.
Most conscience clauses in contraceptive mandates do not protect individual employees working for a secular employer, said Ed Szymkowiak, executive director of Stop Planned Parenthood International (STOPP), a division of American Life League. An employee would have to pay “into a plan that provides contraceptive coverage for his fellow workers.”
But Catholics should not shrug their shoulders and allow pill bills, court decisions and pro-contraception business decisions to go unchallenged, Szymkowiak said. The state laws and a possible federal law will “solidify contraception as a norm,” and the changes now taking place will add up to make society more supportive of the culture of death, he said.
The Church is being “forced into a corner,” having to provide the coverage for its employees in a Catholic hospital or university or eliminate prescription coverage altogether, Szymkowiak said. In time, he speculates, those same institutions could be forced to pay for — or even provide, in the case of hospitals — abortions.
A bill is pending in Congress to require prescription drug benefits in all health plans to cover the pill, IUD, diaphragm, Norplant, Depo-Provera and so-called emergency contraception. The Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC) is sponsored by Sen. Olympia Snowe, R-Maine, (S. 104), and Rep. James Greenwood, R-Pa. (H.R. 1111).
In a letter to Senate Health, Education, Labor and Pensions Committee members, Gail Quinn, executive director of the U.S. bishops’ Secretariat for Pro-Life Activities, said EPICC would “force Church entities to end all prescription drug benefits if they are to avoid violating their fundamental moral and religious teaching on the dignity of human procreation.”
“Moreover, Catholics who serve as employers and employees outside of Church institutions will be similarly affected,” Quinn wrote in June.
She worried that the bill would override any state conscience provisions.
In addition to legislation, companies are agreeing to include contraceptives in their plans as a result of employee lobbying, lawsuits or complaints to the federal Equal Employment Opportunity Commission (EEOC).
Pro-contraceptive organizations are encouraging workers to pressure their bosses to add coverage. On a special Web site, Planned Parenthood outlines steps female employees can take, while the National Women's Law Center's site opens with a banner reading, “Does your health plan cover prescription contraceptives? If not, your employer may be breaking the law.”
The center advises women to go to their employer claiming that the company is “discriminating against women … when its insurance policy covers preventive drugs, devices and services but excludes prescription contraceptives.” It has threatened legal action against employers who refuse to add coverage.
One of the center's founders and co-presidents, Marcia Greenberger, sits on the board of the Georgetown University Law Center Women's Law and Public Policy Fellowship Program in Washington, D.C., according to the Web site.
A Necessity for Health?
While many health-insurance plans have covered abortion for years, especially in HMOs, contraceptive coverage has been largely limited to medical procedures such as tubal ligations.
“It's been a discretionary item, not considered a medical need,” said Richard Meyers, a professor at Ave Maria School of Law in Ann Arbor, Mich.
Procreation “is a perfectly healthy and natural process,” Szymkowiak said. “It boggles the mind to hear people say [contraception] is basic health care.”
But the National Women's Legal Center trumpets on its Web site that “enabling women to time and space their pregnancies and reduce unintended pregnancies … lead(s) to healthier mothers and children, and fewer abortions.”
“Preventing unintended pregnancy through the use of safe and effective contraception is essential to women's health and well-being,” the center said.
The Pro-Life Activities Secretariat countered that many pills and contraceptive devices are abortificient — and abortion rates rise when they are in wide use. Also, contraceptives have numerous side effects and risks of serious complications.
“The side effects of the pill include headaches, depression, decreased libido and weight gain,” the pro-life office wrote on its Web site. “Documented serious complications include heart attacks, cervical cancer and blood clots.”
The office mentioned a recent class-action lawsuit, brought by 123 English women against three pharmaceutical companies, alleging that a form of the pill — the “third generation pill” — has caused death, strokes and life-threatening blood clots.
But is it discriminatory for a business that provides other prescription drugs not to cover contraceptives?
The EEOC in 2000 agreed with two female employees that companies’ failure to pay for coverage violated the 1978 Pregnancy Discrimination Act, which requires equal treatment of women “affected by pregnancy, childbirth or related medical conditions” in all aspects of employment, including the reception of benefits.
Although spokeswoman Jennifer Kaplan said each decision rendered by the commission applies only to the charges at hand, the EEOC's decision has been cited as proof that employers must provide the coverage.
Pro-contraception forces have an even stronger backing in the June 2001 decision of a federal district court that Bartell Drug Co. acted discriminatorily when it failed to pay for the birth-control pills of a female employee. Bartell is appealing the decision to the 9th U.S. Circuit Court of Appeals.
But health plans don't cover everything, said Francis Manion, senior regional counsel with the American Center for Law and Justice. “Many plans don't cover plastic surgery. They don't all cover alcohol rehabilitation treatment and some forms of psychological treatment. … My plan doesn't cover everything, but it never occurs to me that it's discriminatory.”
Manion believes pro-life forces can fight the mandates on several grounds. For one, there have been several court rulings upholding union members’ right to withhold part of their dues because they disagree with some of the causes to which their union contributes. And the principle behind the Hyde Amendment might apply: “We might not be able to outlaw abortion right now, but don't make me pay for it.”
Nevertheless, contraception is making strides. Although some firms such as Wal-Mart continue to fight lawsuits seeking to force contraceptive coverage, automaker DaimlerChrysler began offering coverage for all forms of prescription contraceptives a month after a lawsuit was filed in May.
Also in June, drug store chain CVS began offering coverage for oral contraceptives. An employee, Amanda Mewborn, brought a suit against the company in January. Mewborn, a 23-year-old single mother, was earning $8 an hour as a cashier and said she struggled to pay the $32.59 a month for her birth-control pills.
Both lawsuits claimed sex discrimination.
“It's easier [for companies] to take the path of least resistance,” said Michael O'Dea, executive director of the Christus Medicus Foundation, citing the fear and intimidation created by advocates as well as attorneys referring to the EEOC ruling.
Passage of a federal mandate, he said, would end freedom of choice in health plans for those who do not want to subsidize contraception, he warned.
“Catholic executives have to start standing up and saying, ‘We're going to lose our freedom if we let them tell us what to do,’” he said.
The Diocese of Baker, Ore., did take a stand, switching from a major health insurance company to a self-insurance plan for the diocese's employees.
Bishop Robert Vasa “felt strongly about it,” said Father James Logan, diocesan chancellor, and decided that even if the diocese opted for a plan that excluded abortion and contraception coverage, the premiums paid to Blue Cross would help pay for immoral practices through contracts the insurer has with other businesses and individuals.
But the federal bill, EPICC, would require even self-insured plans, such as the Diocese of Baker's, to cover contraceptives.
Manion of American Center for Law and Justice is ready to go to court on the matter. TITLE VII of the 1964 Civil Rights Act, the basis for the sex-discrimination argument, also provides for religious accommodations grounds on which pro-life advocates can say they don't want to be forced to pay, he pointed out.
Organizations such as Planned Parenthood “claim to be for choice,” Manion stated. “But it turns out they're for their choice. If they truly are for choice, they shouldn't compel people to pay for something that goes against their beliefs.”
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