The Affordable Care Act and contraception: Is it covered, or not?

1. oppose the mandate to provide contraceptive coverage because of religious beliefs
2. are nonprofit
3. hold themselves out as religious organizations AND
4. self-certify that they meet the just-stated requirements of 1–3.

Related article: As the Affordable Care Act comes of age, a look behind the headlines Lucia DiVenere, MA (January 2014)

The rule for small companies
There’s a third group that doesn’t have to provide contraceptive coverage to employees: for-profit companies with fewer than 50 workers. Under the law, these employers have two options:

• Provide no health care: This option carries no penalty but, rather, is an attempt to help small businesses, now that individuals can buy coverage on the exchanges
• Offer health care: If small businesses choose this option, their coverage must include contraceptive care.

So when your patient approaches your front desk to pay her bill, or picks up her contraceptive prescription at the pharmacy, her bill will vary, depending on the age of her plan, her employer’s religious status, and the size of the business she works for. It’s important that you check her coverage with her policy.

Now, on to the controversy.

FOR-PROFIT COMPANIES ALSO SEEK EXEMPTION
Houses of worship are exempted and religiously affiliated nonprofit organizations are offered an accommodation to avoid direct involvement with the contraceptive coverage mandate. More than 40 religiously affiliated nonprofit corporations are currently challenging the mandate, asserting that the accommodation still burdens their religious rights.

What happens when owners of a for-profit corporation claim a religious right to not offer contraceptive coverage to their employees? That’s the question currently before the US Supreme Court. As of this writing, the Court heard arguments on March 25, 2014, and is likely to hand down its decision in two cases in June. The two corporations involved are Conestoga Wood Specialties and Hobby Lobby Stores.

Under the ACA, for-profit employers do not qualify for religious exemptions or accommodations from the contraceptive coverage mandate. As we saw earlier, the mandate varies in its application to these employers by employer size. All for-profit employers with 50 or more employees must provide coverage, unless their coverage is through a grandfathered plan. Employers with fewer than 50 workers have two options. They’re not penalized if they don’t offer any health-care coverage to their employees—but if they do, that coverage must include contraception.

Both Conestoga and Hobby Lobby are major employers. Conestoga Wood has 950 full-time employees. Hobby Lobby operates 514 stores in 41 states, with more than 13,000 employees.

Lower court rulings have been conflicting
The Supreme Court agreed to review and rule on these cases largely to settle widely ­divergent rulings at lower court levels. As of this writing, more than 40 for-profit businesses have challenged the coverage mandate in federal court. The Conestoga and Hobby Lobby owners, like the owners of other businesses challenging the law, say that because they are religious families—Mennonite and Protestant, respectively—and they run their businesses according to their faiths, their religious views extend to their businesses. They claim that the ACA mandate violates their First Amendment right to protection of free exercise of religion as well as their rights under the 1993 Religious Freedom Restoration Act (RFRA), a law enacted to protect individuals from laws that substantially burden their exercise of religion. They are left, they assert, with a choice of providing objectionable coverage or paying a fine, a substantial burden on their freedom of religion.

The key issue before the Court is whether secular for-profit corporations can avoid complying with the legal mandates of the ACA based on the religious beliefs of their owners. To date, five federal circuit courts have ruled on the RFRA claim. Some have determined that corporations have no religious rights. Others have found the opposite. The Supreme Court will attempt to set the path for lower courts to follow.

The outcome of these cases will have a profound effect on women’s health, and may be felt much more broadly in our health-care system. If a business owner can opt out of one sort of coverage based on his or her religious beliefs, then wouldn’t that rule apply to other areas of health care? Employers might choose not to cover childhood immunizations, blood transfusions, or maternity care for single workers. Allowing employers to pick and choose can be risky business.

ACOG joins an amicus brief
ACOG partnered with a number of other preeminent health-care organizations, including the American Academy of Pediatrics, the American College of Nurse-Midwives, the American Society for Reproductive Medicine, the Society for Maternal-Fetal Medicine, Physicians for Reproductive Health, and the International Association of Forensic Nurses, to prepare an amicus brief to the Court on these cases.