Washington Watch
Contraceptive coverage issues: 2000 in review
By Cynthia Dailard
Senior Public Policy Associate
Alan Guttmacher Institute, Washington, DC
In the final days of the 106th Congress, President Clinton signed into law an annual appropriations bill renewing for a third straight year a provision providing insurance coverage of Food and Drug Administration-approved prescription contraceptives to federal employees enrolled in the Federal Employees Health Benefits Program.
The road to enact this annual policy rider was far smoother than in the past. Absent were the debates of previous years over whether certain methods of contraceptives were "abortifacients" and the appropriate breadth of an exemption for religious entities. The lack of any controversy on this front came as a welcome, and somewhat surprising, relief to women’s health advocates who had grown accustomed to fending off annual assaults from opponents of family planning.
In addition, gains continue at the state level in this area, although momentum slowed considerably compared with last year. In 2000, Delaware, Iowa, and Rhode Island enacted contraceptive coverage laws, which brought the total number of states with such laws in place up to 13 (including California, Connecticut, Georgia, Hawaii, Maine, Maryland, Nevada, New Hampshire, North Carolina, and Vermont.) These laws require health plans providing coverage of prescription drugs to provide the same level of coverage for prescription contraceptive drugs and devices. Like many of the other states’ laws, the Delaware and Rhode Island laws allow certain employers to opt out of the coverage requirement on religious grounds (the Iowa law does not). Additionally, the Rhode Island law specifically excludes coverage of mifepristone.
A bill requiring contraceptive coverage was also approved this summer by the city council of the District of Columbia. After a high-profile, heated debate over the scope of an exemption for religious employers, the city council declined to include any exemption, despite the vocal objection of the city’s Catholic archdiocese. The controversy did not go unnoticed, however, by Rep. Earnest Istook (R-OK), a long-time opponent of family planning and chairman of the congressional subcommittee that controls funding for the District of Columbia. Istook threatened to include language blocking implementation of the contraceptive coverage law in his annual DC funding bill.
In an effort to head off congressional intervention, Mayor Anthony Williams "pocket vetoed" the bill, sending it back to the city council for reconsideration. Istook then withdrew his prohibition but maintained language in the funding bill (HR 4942) expressing Congress’ intent that any contraceptive coverage legislation passed by the District "should include a conscience clause’ which provides exceptions for religious beliefs and moral convictions."
Controversy also is brewing over the religious exemption included in California’s contraceptive coverage requirement. The statute, signed into law last year, contains an exemption for religious employers, which are defined as nonprofit organizations that have as their purpose the inculcation of religious values and primarily employ and serve people who share those religious values.
Catholic Charities of Sacramento filed suit in July, arguing that the exemption is too narrow and fails to adequately exempt religiously affiliated organizations in violation of their First Amendment right to religious freedom (Catholic Charities of Sacramento v. State of California). However, a Superior Court judge in September denied the group’s motion to allow Catholic-affiliated organizations to opt out of the law while the case is pending, which has left family planning advocates optimistic about the final outcome of the case.
Meanwhile, in July, Planned Parenthood of Western Washington and Planned Parenthood Federation of America filed a lawsuit in federal court on behalf of a Seattle woman whose employer, a chain of pharmacies, does not cover contraception under its employee health plan (Erickson v. Bartell Drug Co.).
The suit, the first of its kind, asserts that the company’s policy constitutes gender-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964. The lawsuit asks the court to order the employer to include coverage of prescription contraceptives in its health plan. Explained the plaintiff in the case, Jennifer Erickson, "This lawsuit is about fairness — not just for me — but also for millions of American women like me who are being discriminated against."
While the lawsuit targets only Bartell, it could pave the way for similar suits against other companies in the United States that provide prescription coverage to employees but fail to cover contraceptives.
Correction
After this article went to press, President Clinton unexpectedly vetoed the bill renewing a provision that requires contraceptive coverage for federal employees on grounds unrelated to contraceptive coverage. The bill is expected to be signed into law in the coming months.
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