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Conscience and Rule: Contraception Coverage

posted on Tue, Feb 28 2012 3:25 pm by Jennifer Bartlit

The Department of Health and Human Services (HHS) needs to identify which preventive services will be covered by health insurance plans under the Affordable Care Act.  Some services have already been specified (as recommended by the U.S. Preventive Services Task Force, the American Academy of Pediatrics, and the CDC's Advisory Committee on Immunization Practices). 

Upon request, the Institute of Medicine (IOM) studied preventive services for women. The IOM report, Clinical Preventive Services for Women: Closing the Gaps recommended the following preventive health services that health plans should cover without charge to patients:

  • High-risk HPV DNA testing added to conventional cytology testing in women with normal cytology results
  • Counseling and screening for HIV infection annually for all sexually active women
  • Annual counseling on sexually transmitted infections for all sexually active women
  • At least one well-woman preventive care visit annually for adult women to obtain the recommended preventive services, including preconception and prenatal care
  • Screening for gestational diabetes in pregnant women
  • Comprehensive lactation support and counseling and costs of renting breastfeeding equipment
  • Screening and counseling for interpersonal and domestic violence

And, significantly,      

  • The full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity

These IOM recommendations meet the following criteria:

  • The condition to be prevented affects a broad population
  • The condition to be prevented has a large potential impact on health and well-being
  • The quality and strength of the evidence is supportive

The analysis largely echoes that of Guttmacher Institute and others. On January 20, HHS announced that IOM recommendations would become the rule. Employers would be required to offer insurance plans with this coverage. But, some religious employers reject contraception as immoral. The original rule exempted religious organizations whose primary purpose is religious teaching, but not religious employers who also serve nonmembers (e.g., hospitals, universities, charities). After strong criticism from Catholic leadership and others, the Administration revised the planned rule February 10 to divest religious institutions from the requirement, technically. Insurance plans would still have to offer contraception free to employees, but objecting religious employers would not pay directly.

While insurance companies remain generally neutral, self-insured religious employers, many of whom became self-insured to avoid similar state mandates, object. Catholic hospital systems are the largest in the country and increasing mergers with secular hospitals will complicate the issue. The rule as of February still requires some institutions, directly or indirectly, to provide contraception and related services that they find immoral and contrary to religious teachings. The revised rule remains contested by these institutions, claiming it violates their constitutionally protected religious liberty.  

Public opinion is divided. The Public Religion Research Institute says 49% of all Americans favor requiring religious employer insurance coverage of contraception.  Yet, one need not be religious or an employer to be concerned by this rule of reason. It requires all to accept the analysis, conscience aside.

The real dispute is about the proper role of the (national) state in promoting, planning, preventing, or even ending human life or would-be life as a matter of public health. The question will always be contentious, for the subject is profoundly personal and private, a property of conscience--that is to say, one part reason, another part faith and still other parts something in between.  James Madison said, "Conscience is the most sacred of all property." Conscience is nothing if not a part of health.

To improve public health, we must hear all sides.

Jennifer Bartlit

This information was developed by Jennifer Bartlit, J.D., Senior Attorney, Institute of Public Law;  Lecturer, Media Law & Ethics, Department of Communication & Journalism, University of New Mexico—in collaboration with the Network for Public Health Law-Western Region. 

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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