The Contraception Controversy: A Comprehensive Reply (Introduction)

The Obama Administration’s recently announced policy to require insurers to cover contraception as women’s preventive health care has prompted many over-heated op-eds, editorials on both sides and even a thoroughly one-sided Congressional hearing. The controversy is unlikely to end anytime soon: pending federal legislation and proposed amendments would massively enlarge the scope of insurers’ and business owners’ ability to restrict any type of insurance benefit on either “moral” or “religious” grounds, undermining the very purpose of insurance.

Below, we take a closer look at the arguments by opponents of the contraception requirement, unpack the legal issues and public health debate, and respond to many erroneous assertions.

Full Introduction

First, however, we note what is at stake. Last August, recommendations for women's preventive care from an Institute of Medicine panel of medical experts made a compelling case for transformative improvements in the availability of contraception that will lead, at last, to measurable improvements in the sky-high rates of unplanned pregnancy in the United States, and will, happily, increase the proportion of planned pregnancies among American women.[i]

By ensuring access to contraception, the policy will improve maternal and child health and reduce health care costs. These goals are recognized by both the public and the courts as a compelling interest essential to the well-being, autonomy, and privacy of women and families. As The Salt Lake Tribune notes, "[t]here is no rational objection to the idea that universal access to contraception improves women's health and lives, is key to reducing poverty, is cheaper than childbirth and belongs in any health care plan worthy of the name."

The vast majority of Americans already use contraception, albeit inconsistently. Too many today find the most highly effective, long-acting forms of contraception out-of-reach for cost reasons. The significance of the contraceptive-coverage requirement cannot be overstated: it will allow millions of women who today cannot afford regular access to contraception the ability to take better control of their health and the direction of their lives. Perhaps this is the reason that the policy is receiving such high levels of public support, even among self-professed Catholics (61 percent of whom support it in one recent poll, at the same rate as the general public).

The policy's wide reach will particularly assist women with fewer resources, many of whom admit to sometimes using contraception inconsistently in order to save money. Such a transformative change cannot happen, and will not happen, if the rule is permitted to be punched full of holes in order to prioritize religious institutions' views over the needs and wishes of the women and families employed by them.

The nature of insurance coverage as a service is that it asks nothing of those who may not need, want, or use the full scope of coverage. Millions of women are employed by religiously affiliated hospitals and social-service organizations. The health needs of these women and their families are identical to those of the general population, and they want and need coverage for contraception.

The outlines of the issue are by now clear. Citing cost disparities that fall heavily on women in the healthcare insurance market, Congress enacted a new women's preventive services coverage requirement as part of the Affordable Care Act. Following a year-long review by medical experts, the prestigious Institute of Medicine (IOM) recommended a host of health measures to be covered without co-pay in insurance, including "the full range of Food and Drug Administration-approved contraceptives." The Department of Health and Human Services (HHS) published an interim final rule last year that adopted the IOM recommendations, but proposed an exemption for houses of worship, including churches and integrated auxiliaries of churches, on the grounds that these institutions exist to instill religious values and primarily employ and serve people of the same faith.

In January, HHS announced that this rule would be finalized with an additional one-year grace period to permit a broader range of religiously-objecting organizations, such as hospitals and universities, to comply. Subsequently, in response to a vigorous public debate, on February 10, 2012, President Obama took steps to accommodate the concerns of these groups with a modified implementation plan.

Under the new policy, formally memorialized in the Federal Register, objecting employers may opt out of paying for, and communicating about, contraception coverage. Instead, insurance companies will be required to offer the coverage directly to employees. At the same time, HHS also issued a bulletin regarding the temporary enforcement safe harbor.

This workable and balanced approach has the approval of a majority of Americans, including a majority of Catholics, and quickly garnered the support of many large Catholic organizations, such as the Catholic Health Association, the Association of Jesuit Colleges and Universities, the Sisters of Mercy of the Americas, and Catholic Charities, as well as other religious denominations and religious leaders.

Yet the United States Conference of Catholic Bishops (USCCB) and some other religious leaders have vociferously objected to the policy, claiming it would violate religious liberty. Instead, they urged support for highly unpopular legislation to allow any employer, including anyone who runs "a Taco Bell," to refuse to provide coverage for any services on any moral or religious grounds.

1) Religious liberty and the right of an individual to live according to his or her own religious conscience are supported, not threatened, by this policy.

2) Both the original policy and the accommodation are legally and constitutionally sound.

3) The Administration’s policy accommodation fairly balances the interests of employers and employees and is based on the economic realities of the insurance marketplace.

4) Birth control coverage is a mainstream and commonsense aspect of preventive care for women.

5) Emergency contraception is essential to women’s health and is not an “abortion drug.”

6) Sterilization is a common form of birth control. Denying access, especially when it is medically recommended, can have devastating consequences.

7) Conclusion

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[i] As stated by the IOM Committee on Unintended Pregnancy in 1995:

The committee urges, first and foremost, that the nation adopt a new social norm: All pregnancies should be intended – that is, they should be consciously and clearly desired at the time of conception. This goal has three important attributes. First, it is directed to all Americans and does not target only one group. Second, it emphasizes personal choice and intent. And third, it speaks as much to planning for pregnancy as to avoiding unintended pregnancy. Bearing children and forming families are among the most significant and satisfying tasks of adult life, and it is in that context that encouraging intended pregnancy is so central.

Committee on Unintended Pregnancy, Institute of Medicine, National Academy of Sciences, The Best Intentions: Unintended Pregnancy and the well-being of children and their families (Sarah S. Brown & Leon Eisenberg, eds.,1995).