States at the Forefront of Contraception Mandates

E-newsletter Issue #87 | March 1, 2012

In the 12 years since New Hampshire mandated health insurance companies to cover contraceptive services, no one has asked for repeal.

That is, until the controversy broke out last month over exempting religious organizations from President Obama’s national mandate, New Hampshire Rep. Terie Norelli told CSG.

The 1999 legislation, which Norelli co-sponsored, does not contain any exemption for religious organizations. 

“Looking back through the records, though, the subcommittee had heard some debate but decided not to make any changes,” she said. It passed without an amendment to exempt religious organizations.

“There was no public outcry. In fact, we do have religious institutions that have been providing coverage ever since the bill was passed,” Norelli said.

President Obama in January called for insurance to cover, at no cost to enrollees, any prescribed FDA-approved contraceptive and related services. The rule exempted churches and other houses of worship, but the exemption did not extend to all employers that are religiously affiliated, such as hospitals and universities. The federal rule was an outgrowth of the Affordable Care Act, the federal health care reform law.

After a firestorm of criticism, Obama announced a compromise position. The rule would still apply to all plans, but employers with a religious affiliation who object to covering contraception will have a one-year grace period during which they do not have to comply with the rule. Then, under more detailed rules to be published in the next year, religiously affiliated employers will not have to pay for contraception services in their premiums. Employees will receive coverage free; insurers will directly provide the coverage and, presumably, absorb any costs.

Prior to the federal action, 26 states passed laws between 1998 and 2011 that mandate coverage of contraceptive services, while two additional states have mandates in place following an attorney general opinion and a human rights commission finding. Nineteen states include some religious exemption, including Hawaii, which is said to be the model for the February compromise made by the Obama administration. 

In New Hampshire, Norelli attributes the recent flurry of activity to pass an amendment to the state law that would provide religious exemption to the mandated contraception coverage to the politics of the day.

“I think, obviously, it’s a presidential election year and many Republicans do not like the Affordable Care Act,” she said. “It’s a political opportunity—they have another argument against the ACA, which is this religious exemption. It’s really about contraceptive coverage. The New Hampshire (Republican) leadership was caught unaware of the state law and so they are now trying to repeal the state law.”

Norelli warned that some politicians may be surprised by reaction to their efforts to exempt employers with moral objections from providing contraception coverage:  

“I believe they are out of touch with public opinion. For most women, it is a matter of fairness,” she said. “Almost 98 percent of Catholic women use some kind of contraceptive, so there is a question of fairness.” 

Kentucky has no contraception mandate, although Rep. Mary Lou Marzian of Louisville tried to get such a mandate 10 years ago.

“It is an economic issue. If you can’t plan children, how many and when, your job may not be there if you get pregnant and have to leave. You may come back to no job or not as good a job,” she said.

Her bill 10 years ago got out of committee, but it was amended to include a broad religious exemption on the House floor. She chose not to move the bill forward.

“That gutted the bill. I let it die. I had no problem with a religious exemption for a Catholic-only entity, but not for a big hospital that takes public funds,” she said.

Marzian told CSG that she hasn’t heard much discussion of the recent federal action at the Kentucky state capitol and has seen no legislation to try to overturn the Obama compromise on the religious exemption.


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