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HHS Decision on Contraception as Preventive Care Resists Pressure for Overly-Broad Religious Exemption

January 24, 2012

The U.S. Department of Health and Human Services (DHHS) on Friday announced that it was finalizing a rule on women’s preventive health care that it had first issued in August 2011, when it adopted in full the recommendations of an expert panel at the Institute of Medicine. Under the rule, a range of services—including contraceptive counseling and provision of all contraceptive methods approved by the Food and Drug Administration—will be covered without out-of-pocket costs to patients by new private health plans written on or after August 1, 2012.

Significantly, DHHS resisted pressure for an overly broad religious exemption to the contraceptive coverage requirement. Instead, it kept in place a more narrow definition, exempting only health plans provided by bona fide “religious employers” that exist for the purpose of inculcating religious values and that primarily employ and serve people who share the employer’s religion. In addition, exempted organizations have to be nonprofits under a section of U.S. law that is essentially limited to churches and associations of churches.

The Catholic hierarchy and some socially conservative groups that oppose contraceptive use on doctrinal or social grounds had lobbied for a far broader range of employers to be exempted, including universities, hospitals and social service organizations that are religiously affiliated but that serve and employ the general public. These groups argued that anything less than a broad exemption would constitute religious discrimination, even claiming it would somehow constitute a “war on religion.”

However, the case for a broader religious exemption has several major weaknesses. For instance, while an institution may be operating out of a religious motivation, it does not follow that the institution is performing a religious function per se. Religiously affiliated schools, hospitals and social service agencies that serve and employ members of the general public are a part of the public arena, with an obligation to abide by public rules. Indeed, many of these organizations receive taxpayer dollars for some of the services they provide.

Moreover, there is no reason that the religious beliefs or conscience rights of an employer should take precedence over those of its employees. Expanding the exemption would have affected millions of individuals, interfering with their need to obtain preventive health care that they deem necessary and that they seek in line with their own religious and moral beliefs.

Indeed, the opposition to contraceptive use by some religious leaders does not reflect the beliefs or actions of their laity: Contraceptive use by Catholics and evangelicals—including those who attend religious services most frequently—is the overwhelming norm in U.S. society. Contraceptive use is almost universal among all sexually experienced U.S. women (99%), including Catholic women (98%). For those employees who share their employer’s religious objection to contraception, providing coverage would not in any way force them to use contraception in violation of their beliefs.

By limiting the breadth of the religious exemption, DHHS will be broadening access to contraceptives for millions of women by eliminating the daunting barrier that cost can pose to effective contraceptive use. Removing that barrier for women covered by private health plans not only makes it easier for them to use contraception generally, but will also allow them to use the most effective methods, like the IUD, which they might not previously have been able to afford.

More information:

The religious exemption to mandated insurance coverage of contraception

The case for insurance coverage of contraceptive services and supplies without cost sharing

Contraceptive use is the norm among religious women

Contraception is highly effective when used consistently and correctly

Facts on contraceptive use in the United States