There's been no let-up in the debate about the Obama administration's rule requiring most employers to provide prescription birth control to their workers without additional cost.
Here's the rub: The only truly novel part of the plan is the "no cost" bit.
The rule would mean, for the first time, that women won't have to pay a deductible or copayment to get prescription contraceptives.
"Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford," says Sarah Lipton-Lubet, policy counsel with the ACLU. "But as a legal matter, a constitutional matter, it's completely unremarkable."
In fact, employers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That's when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act. That law is, in turn, an amendment to Title VII of the 1964 Civil Rights Act, which outlaws, among other things, discrimination based on gender.
Here's how the EEOC put it at the time: "The Commission concludes that Respondents' exclusion of prescription contraceptives violates Title VII, as amended by the Pregnancy Discrimination Act, whether the contraceptives are used for birth control or for other medical purposes."
But it's not only the EEOC that has ruled on the issue. More than half the states have similar "contraceptive equity" laws on the books, many with religious exceptions similar or identical to the one included in the administration's regulation.
That's no accident. "The HHS rule was modeled on the exceptions in several state laws, including California, New York and Oregon," says Lipton-Lubet of the ACLU.
There are now lawsuits challenging the constitutionality of the policy, including a new one filed on behalf of the religious television network EWTN. But the exemptions have already been tested in court, at least at the state level.
In 2004, the California Supreme Court upheld that state's law, in a suit brought by Catholic Charities, on a vote of 6-1.
The court ruled that Catholic Charities didn't qualify as a "religious employer" because it didn't meet each of four key criteria (which, by the way, are the same as those in the new federal regulation):
- The organization's primary purpose is "the inculcation of religious values."
- It primarily employs people of that religion.
- It primarily serves people of that religion.
- It's a registered nonprofit organization.
Two years later, in 2006, New York's top state court rejected a claim by Catholic Charities and several other religious groups that the state's contraceptive coverage law discriminated against them because it exempted churches but not their religiously affiliated groups.
"When a religious organization chooses to hire nonbelievers, it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit," the justices wrote.
Said Lipton-Lubet, "In both the California and New York cases, Catholic Charities made arguments very similar to the ones being made now with respect to the HHS rule. Those arguments failed in that litigation, and they're no more persuasive here."
Lawyers for religious litigants, however, say they think they may stand a better chance challenging the federal rule, particularly given a recent unanimous Supreme Court decision exempting religious employers from employment discrimination laws.
Opponents of the Obama administration's rule are also hoping they can find the votes to overturn it in Congress.
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STEVE INSKEEP, HOST:
Now, for all the controversy over this policy, it turns out that at similar requirement has existed for years, and it's already been tested in court. NPR's Julie Rovner has more.
JULIE ROVNER, BYLINE: One of the things that most frustrates backers of the birth control mandate is that the requirement itself is not so new. Sarah Lipton-Lubet of the ACLU says the only really new part is that for the first time, women won't have to pay a deductible or copayment before they can get contraceptives.
SARA LIPTON-LUBET: But as a legal matter, a constitutional matter, it's completely unremarkable.
ROVNER: What gave contraceptive coverage its first big boost was a ruling by the Equal Opportunity Employment Commission back in December of the year 2000. Two nurses had filed a complaint because their health plan covered other preventive services, but not birth control. In that ruling, the EEOC found that a 1978 law- the Pregnancy Disability Act, or PDA - prevents discrimination in the provision of birth control used to prevent pregnancy, says Peggy Mastroianni, EEOC's general counsel.
PEGGY MASTROIANNI: That the PDA covers not only people who are pregnant, but also discrimination based on the ability to become pregnant, or potential for pregnancy.
ROVNER: Back in 2000, the EEOC also looked at whether failing to cover contraception when it's used for medical reasons - not to prevent pregnancy - violated Title VII of the U.S. Civil Rights Act.
MASTROIANNI: And under that analysis, because these prescription contraceptives are available only for women, everybody who is affected by their exclusion is female, and that is simply straightforward Title VII sex discrimination.
ROVNER: The EEOC ruling - though not technically legally binding on every employer - had an immediate effect. It was cited in lawsuits, and helped accelerate the trend of states passing their own laws requiring contraceptive coverage.
Today, 28 states have such laws. Several of those states have no exceptions at all for religious employers but several do. And in many cases those exceptions look a lot like the one in the rule issued by the Department of Health and Human Services last month.
The ACLU's Lipton-Lubet says that's no coincidence.
LIPTON-LUBET: The HHS rule was modeled on the exceptions in several state laws, including California, New York, Oregon.
ROVNER: Specifically, those states and the new federal rule exempt religious organizations that have as their primary purpose, quote, "the inculcation of religious values," and who primarily employ and serve people of that religion. That means, in practice, that churches, synagogues, mosques and other houses of worship are exempt, but religious hospitals, universities and social service agencies are not. And while lawsuits are now being filed, they're not the first to challenge that distinction.
Lipton-Lubet says the social service agency Catholic Charities sued in both California and New York, in 2004 and 2006, respectively.
LIPTON-LUBET: In both the California and New York cases, Catholic Charities made arguments very similar to the ones that are being made now with respect to the HHS rule.
ROVNER: That would be that requiring them to include contraception in their health plans would force them to violate their religious beliefs.
LIPTON-LUBET: Those arguments failed in that litigation, and they're no more persuasive here.
ROVNER: And in both states, she says, the cases got to each state's highest court, where justices resoundingly found in favor of the contraceptive requirement, and against the idea that it was an infringement of religious liberty.
LIPTON-LUBET: In fact, the litigation in New York was appealed all the way to the Supreme Court. The Supreme Court decided: We don't need to hear that case.
ROVNER: But opponents have said when the government acts, it's a whole new legal ballgame, and as we've seen, certainly a whole new political one.
Julie Rovner, NPR News, Washington.
INSKEEP: So here's where we stand this morning, as reported by our colleague, Scott Horsley: President Obama is about an hour away from announcing a change in his policy on contraception. The new policy will be that women working for religious institutions can still get contraception for free, but they would get it directly from their insurance companies without involving the church. We will bring you reaction to that change as we learn it on NPR News. Transcript provided by NPR, Copyright NPR.