Contraceptive coverage laws proliferate in 1999

By Cynthia Dailard

Senior Public Policy Associate

Alan Guttmacher Institute

Washington, DC

On Sept. 29, President Clinton signed the Treasury and General Government App ropri a tions Act, which ensures that federal employees will continue to have access to contraceptives for a second year in a row. The law — enacted on an annual basis to fund specific branches of the government — renews a provision requiring health plans participating in the Federal Employees Health Benefits Program (FEHBP) to provide coverage of prescription contraceptives approved by the Food and Drug Administration (FDA) on par with coverage for all other prescription drugs.

While Congress now has created a two-year tradition of providing comprehensive contraceptive coverage for its employees, many individuals insured through private-sector employers do not enjoy such coverage. In fact, research by the Alan Guttmacher Institute shows that while virtually all traditional fee-for-service plans cover prescription drugs, only half cover prescription contraceptives and only one-third cover oral contraceptives, the most popular form of reversible contraception among U.S. women.

In response to this disparity, Sens. Olympia Snowe (R-ME) and Harry Reid (D-NV), along with Reps. Jim Greenwood (R-PA) and Nita Lowey (D-NY), introduced the Equity in Prescription Insur ance and Contraceptive Coverage Act (EPICC), which is federal legislation requiring contraceptive coverage in private-sector, employment-based health plans. The bill has 38 cosponsors in the Senate and 119 cosponsors in the House; its sponsors are hopeful for passage in the year 2000.

9 states pass laws

Such optimism is based on the enormous momentum building in favor of contraceptive coverage at the state level. Between April and Septem ber, nine states enacted EPICC-like contraceptive coverage laws: California, Connecticut, Georgia, Hawaii, Maine, Nevada, New Hampshire, North Carolina, and Vermont — joining Maryland, which approved the first such law in 1998.

All of those laws require private insurance coverage of FDA-approved contraceptive drugs and devices, and all but those enacted in California, Connecticut, and Georgia require coverage of contraceptive services. Notably, North Carolina’s law is the first and only law in the country to explicitly exclude coverage for the abortifacient "RU-486" (mifepristone) and for Preven, an emergency contraceptive pill. (When the bill was enacted, Preven was the only formulation of oral contraceptives on the market specifically packaged for "emergency," or postcoital, use.)

Sweet victory’ in California

The recent signing of California’s law on Sept. 27 by Gov. Gray Davis marked a particularly sweet victory for family planning advocates in the state and across the country. Pioneering the first contraceptive coverage bill in the nation back in 1995, the California legislature passed such legislation four times over the ensuing years — with three bills vetoed by then-governor Pete Wilson — before seeing contraceptive coverage become a reality.

In most states, and in the FEHBP, resolving difficult questions over the scope of an exemption for entities that object to covering contraceptives was central to the bill’s ultimate success. Indeed, seven of the 10 states that have enacted contraceptive coverage laws included some form of "conscience clause." Those states are Mary land, Maine, Nevada, Connecticut, North Carolina, Hawaii, and California. Those state-crafted provisions typically specify which employers should be entitled to claim a conscientious objection to providing contraceptive coverage to their employees and what grounds should form the basis of such an exemption.

While these exemptions typically allow entities that qualify as a "religious employer" to opt out of the coverage requirement when covering contraception would conflict with the employer’s bona fide religious beliefs, practices, or tenets — depending on the state — the real question determining the scope of such an exemption is how each law defines "religious employer."

The California law, for example, contains a rather narrow conscience clause and exempts only those nonprofit organizations that have as their primary purpose the inculcation of religious values and that primarily employ and serve people who share those religious beliefs. The law thus appears to exempt churches, synagogues, and religious schools in California, but not religiously-affiliated hospitals. In sharp contrast, Maryland’s law does not define the term at all. This potentially allows any entity that self-identifies as a religious organization to claim an exemption.

To date, Hawaii has the only law that protects enrollees from being disadvantaged when their employer claims a religious exemption. The law specifies that when an employer opts out on religious grounds, the enrollee is entitled to purchase coverage for contraceptives directly from the plan. The cost to the enrollee must be no more than the price the employee would have paid had the employer not been exempted.

As the sponsors of EPICC and state legislators continue to press for contraceptive coverage, they will invariably confront similar questions involving religious exemptions. While such debates are often difficult and contentious, there now exists a handful of models in state laws that can help guide such future debates.