So far this year, lawmakers in New York, Arizona and Massachusetts have approved legislation requiring employer-sponsored health insurance plans that provide coverage for other prescription drugs also to cover prescription contraceptive drugs and devices approved by the Food and Drug Administration. Their actions bring to 20 the number of states with such mandates (see box). Each of the new laws takes effect in 2003, and in contrast to the opposition to such legislation among Republican leaders in Congress, each has been signed by a Republican governor.

The debate over New York's new law, a broad set of mandates related to women's health that will be signed by Gov. George E. Pataki (R), was particularly long and contentious. Similar measures had been approved by the Assembly the four prior years but blocked in the Senate, first by inaction and later by the Senate's insistence on a broadly worded exemption for employers claiming an opposition to contraception on the basis of their religious beliefs, a provision that the Assembly opposed. (Major disputes over coinsurance for breast and cervical cancer screening also contributed to the delays.) Lawmakers broke the "refusal clause" standoff in June, compromising on a provision identical to one included in California's 1999 law that narrowly defines a religious employer as one that has as its mission the inculcation of religious values, that primarily employs and serves people who share its religious tenets, and that falls under a U.S. tax code provision that applies to churches, church auxiliaries and religious orders. Under the New York law, employees of exempted entities may purchase contraceptive coverage directly from the employer's insurer.

When news broke of the compromise, the state's Catholic Conference announced that it might challenge the new law in court, describing it as an attack on the Catholic Church and a violation of First Amendment principles. In particular, the conference lamented the fact that the law's exemption would not apply to Catholic hospitals, nursing homes, schools and charitable agencies. In 2001, a state appeals court ruled against a challenge to California's exemption, finding that the state had a right not only to define the exempt group as it chose but also to have passed a law without any exemption. The case is currently before California's supreme court.

Arizona Gov. Jane Dee Hull (R) signed her state's law in April, despite reservations over its narrow refusal clause that also had been modeled on California's. The Arizona law is notable for another feature, duplicated only in Missouri's 2001 law: It prevents religious employers from discriminating against enrollees who find another way to purchase contraceptives. Massachusetts's new law, signed in March by acting governor Jane Swift (R), includes a refusal clause based on the U.S. tax code that would exempt churches, parochial schools, and "qualified church-controlled organizations."

The 20 states mandating contraceptive coverage account for almost half of the nation's population. State law, however, does not apply to employers that self-insure, and nearly half of workers and dependents with employer-sponsored insurance are in self-insured plans. Legislation pending in Congress, the Equity in Prescription Insurance and Contraceptive Coverage Act, would apply to all types of private-sector health insurance plans ("Federal Law Urged As Culmination of Contraceptive Insurance Coverage Campaign," TGR, October 2001).

A. Sonfield

1998 2000
  Maryland   Delaware
1999   Iowa
  California   Rhode Island
  Connecticut 2001
  Georgia   Missouri
  Hawaii   New Mexico
  Maine   Texas
  Nevada   Washington
  New Hampshire 2002
  North Carolina   Arizona*
  Vermont   Massachusetts*
    New York*
*Effective January 2003