The fight for women's health

Last week’s “Susan G. Komen Foundation defunds Planned Parenthood story” highlighted both the inane behavior of such an influential charity and the quick and unsparing response of a public with little patience for such a brazen attack on women’s health.

This was, of course, a minor victory—women’s health advocates shamed Komen into restoring funding to projects that offered free breast cancer screening for women and at the same time drew increased scrutiny to those who seek to limit women’s health services and reproductive choices. It will be interesting to see what effect this firestorm has on these struggles going forward. If the more than $3 million in private donations to Planned Parenthood in the last week is any indication, perhaps people will remain engaged and in a fighting mood.

And so barely a week later, the resolve of women’s health advocates is being tested once again as some religious organizations and politicians push back against the president’s new mandate for contraception coverage (without a co-pay) by health insurers, even for organizations with religious affiliations whose faith opposes the use of contraception.

“The Obama administration is engaged in a war against religion,” says presidential candidate Newt Gingrich. Candidate Romney says that on day one of his presidency he “will eliminate the Obama administration rule that compels religious institutions to violate the tenets of their own faith.” Senator Santorum, fresh off primary and caucus victories in Missouri, Colorado, and Minnesota, warned that the president has an “overt hostility to faith.”

But let’s be clear. This is not a war against men and women of faith, and the institutions that they are committed to. Instead, this is an attack on a policy that gives women control over their reproductive choices even when the institutions for which they might work do not approve, for reasons of faith, of those choices. And as such, it is a dramatic public health advance that will protect and enhance women’s health through the preventive services offered in the Patient Protection and Affordable Care Act (ACA), popularly (and sometimes derisively) known as ObamaCare.

The new mandate is based on the careful recommendations of a 2011 Institute of Medicine “Clinical Preventive Services for Women: Closing the Gaps.” That report also calls for the ACA to include preventive screening for women for gestational diabetes, improved screening for the human papillomavirus (HPV), annual counseling on sexually transmitted diseases and HIV screening for sexually active women, “lactation support and counseling and [the] costs of renting breast feeding equipment,” “screening and counseling for interpersonal and domestic violence,” and coverage for “at least one well-woman preventive care visit annually for adult women to obtain the recommended preventive services.”

In developing the mandate, the Obama administration acknowledged that some groups of faith might be opposed to it. That is why, as Secretary for Health and Human Services Kathleen Sebelius has said, the mandate provides clear exceptions for “religious organizations that primarily employ people of their own faith.” In other words, Illinois Representative Mike Quigley, a supporter of the mandate, writes that the mandate includes “an exemption that will allow religious organizations that exist for religious purposes and primarily employ and serve those who share their religious values to opt out of providing contraception.”

So then where’s the outrage coming from, especially given the fact that recent polling suggests a majority of Americans are actually in support of the mandate as written?

There are those who would like us to travel back to a time when women had little control over their bodies and contraception was illegal. Candidate Santorum, for example, has spoken about “the dangers of contraception in this country.” In Santorum’s view, contraception is “a license to do things in a sexual realm that is counter to how things are supposed to be” and has pledged to repeal federal funding for contraception.

But the more immediately pressing opposition is from religious organizations and the right’s culture warriors who claim that the mandate’s exemption is not broad enough because it does not cover religiously affiliated organizations, like hospitals, social service organizations, and universities that employ and provide services to individuals who are not members of that institution’s faith.

Even before all the hubbub, 28 states had required that insurers “provide coverage of the full range of FDA- approved contraceptive drugs and devices.” Of those, eight do not allow exemptions. However, according to the U.S. Conference of Catholic Bishops “all the state mandates, even those without religious exemptions, may be avoided by self-insuring prescription drug coverage, by dropping that particular coverage altogether, or by taking refuge in a federal law that pre-empts any state mandates.” Never mind, of course, that many religiously affiliated organizations already comply with state laws and provide contraception in their health plans.

Despite all the bluster and lawsuits already filed, this issue is not likely to be interpreted by the courts as an attack on the religious freedoms guaranteed by the First Amendment. According to constitutional law expert Seth Kreimer, the Kenneth W. Gemmill Professor of Law at the University of Pennsylvania Law School, the Supreme Court ruling written by Justice Scalia in Employment Division v. Smith (1990) created precedent in favor of the mandate. In that ruling the court decreed that it has “never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” Alternatively, opponents may have legal recourse from the 1993 Religious Freedom Restoration Act, which provides “a claim or defense to persons whose religious exercise is substantially burdened by government.”

The mandate doesn’t kick in until August 2013, so it is possible that a creative solution may come to pass balancing the Obama administration’s desire to provide contraceptive choices for all women and the political realities of a Presidential campaign season.

According to news reports, the president is set to offer a compromise later today that would allow an “accommodation” for religiously affiliated organizations. The report says that in the new plan, “the relationship between the religious employer and the insurance company will not need to have any component involving contraception.” Instead, under the new plan, the mandate stands and contraception will still be covered, but the insurance company will directly contact female employees and provide the coverage free of charge. With both Planned Parenthood and the Catholic Health Association (a trade group representing Catholic Hospitals) quickly endorsing the president’s new mandate proposal, perhaps the president has found a way to move forward.

But the coming weeks are sure to see continued fighting and negotiating around this new version of the mandate. Carol Tracy, executive director of the Women’s Law Project, an organization committed to creating “a more just and equitable society by advancing the rights and status of all women throughout their lives,” believes the Obama administration will continue to support the mandate. “It is critical to women’s health care,” Tracy told me, “and I hope that the Obama administration's accommodation continues to safeguard women's access to contraception, regardless of who pays for it, so the purpose of the mandate remains intact."


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