News: CJ Exclusives

Obama Contraception Mandate Would Supersede N.C. Law

Critics say that Obama’s compromise is “a shell game”

For the past decade, North Carolina has operated under a contraception mandate for private health insurers that hasn’t caused much uproar. It contains a broad exemption that allows faith-based employers who are opposed to birth control as a matter of conscience to opt out, and frees insurers to charge co-pays for the coverage.

But new federal guidelines from the U.S. Department of Health and Human Services would supersede the exemption. The regulations would narrow the opt-out to force some religiously affiliated charities and organizations to buy contraception coverage, without a copay or deductible, in violation of their faith’s teachings.

The Obama administration’s birth-control mandate, which takes effect fully in August 2013, has drawn condemnation from the Catholic Church, evangelical Christians, Republicans, and some Democrats. Critics say that the guidelines empower the federal government to coerce the faithful to violate their consciences, abridging the constitutional right to religious freedom.

On Friday, the administration tweaked the birth-control policy in what it billed as an accommodation for religious groups. Under the revision, religious employers still must purchase insurance, but the insurance company would offer the birth control benefits directly to insured employees in a separate agreement.

Critics assailed the concession as a difference without a distinction. Hannah Smith, an attorney with the Becket Fund for Religious Liberty, said that President Obama’s announcement doesn’t change anything.

“It’s really just an accounting shell game,” Smith said on Friday afternoon. “Today’s announcement was not really a compromise, because it just shifted attention away from the religious employer and onto the insurance company, when in reality the religious employer will still be paying for these policies, and probably be paying higher premiums because the insurance company will not be paying for these services as an act of Christian kindness.”

Federal mandate

North Carolina’s state-level mandate hasn’t generated as much attention or controversy as the one pushed by the Obama administration. Enacted in 1999, the statute specifies that all private health insurance plans that cover prescription drugs also must cover contraceptives. The religious exemption appears to cover all organizations in North Carolina that might want to opt out.

David Hains, a spokesman for the Roman Catholic Diocese of Charlotte, said that his organization informs new employees that their insurance policy won’t cover prescription contraceptives.

“We believe the North Carolina law clearly allows us to do what we currently do, which is not to offer the stuff,” Hains said.

That wouldn’t be the case under the new federal mandate, though.

“Our churches would qualify for the new HHS exemption, but our schools and our Catholic social services would not,” Hains said.

Smith said that many religious organizations choose to opt out by self-insuring under the federal ERISA law governing employer-provided benefit plans. “There are lots of ways that religious organizations, even in states with a contraception mandate with no express exemption, have been able to opt out,” she said.

The federal mandate, however, offers no such protections.

N.C. law

Twenty-eight states have a contraception mandate for private health insurance plans, according to the National Conference of State Legislatures. Nine of those states don’t have a conscience clause. Of the states that do, only three have a religious exemption as narrow as the one pushed by the Obama administration.

North Carolina’s statute applies to any contraceptive approved by the U.S. Food and Drug Administration, excluding the abortion drug RU-486 and forms of emergency contraception.

The Alan Guttmacher Institute, a national research organization formerly tied to Planned Parenthood, ranks North Carolina’s religious exemption as “broader,” meaning it “allows churches, associations of churches, religiously affiliated elementary and secondary schools, and, potentially, some religious charities and universities to refuse [coverage], but not hospitals.”

In contrast, the Obama administration’s exemption applies only to churches and houses of worship. Religious hospitals, charities, and schools would have to buy the coverage. Then, the insurance company would contact each employee and offer contraception benefits.

In addition, the federal mandate would require insurers to cover abortion drugs specifically outlawed by the North Carolina statute, such as RU-486. Sterilization also would be covered.

‘Close loopholes’

“The whole point of the federal mandate is to close any of the loopholes that are now available for religious organizations to opt out of these state-level mandates,” Smith said. “The federal mandate would seek to require these organizations to cover these drugs and services.”

Under the Tar Heel State’s exemption, qualifying employers must provide written notice to all participants in the plan that prescription contraception drugs aren’t included. The statute defines “religious employer” as an entity “organized and operated for religious purposes and is tax exempt,” one in which the “inculcation of religious values is one of the primary purposes of the entity,” and one that “employs primarily persons who share the religious tenets of the entity.”

The N.C. Department of Insurance couldn’t confirm how many employers have requested the exemption under North Carolina’s law.

“There is no requirement that insurers report to DOI employer groups that request an exemption from the mandate, nor does the department collect that information,” said Kerry Hall, a spokeswoman for the department.

State employees covered

Last summer, lawmakers in the General Assembly tussled over a revision to the N.C. State Health Plan, which covers state employees and public school teachers, that removed coverage for elective abortion, which are those deemed medically unnecessary. Under the revamped plan, abortions are covered only “when the life of the mother would be endangered if the unborn child was carried to term or the pregnancy is the result of rape or incest.”

The State Health Plan covers birth control for both men and women, including “oral medications, intrauterine devices, diaphragms, injectable contraceptives and implanted hormonal contraceptives.” It also covers sterilization and infertility and sexual dysfunction services. It doesn’t cover artificial means of conception, such as in vitro fertilization.

David N. Bass is an associate editor of Carolina Journal.