Legal battles over 'contraceptive equity'

For many women, it began as a simple question of gender equity. But it's evolved into a constitutional standoff over religious freedom that could go all the way to the Supreme Court.

The issue is whether health-insurance plans that provide prescription-drug coverage must also include coverage for prescription contraceptives.

This week, courts in New York and California wrestled with the question of whether religious organizations opposed to contraceptive use on moral grounds should be exempt from those requirements when insuring their employees. The outcomes of both cases could determine the direction of national trends, which for the last decade have been steadily moving toward required coverage for contraceptives.

"There's a growing consensus in this country that all women should have access to contraceptives because it's a basic healthcare need," says Eve Gartner, a senior staff attorney at Planned Parenthood Federation of America. "But there have usually been fairly vitriolic battles in the state legislatures around this."

The idea of what's come to be called "contraceptive equity" wasn't even on the national agenda until 1996, when Viagra came along. Within seven weeks of that drug's approval by the FDA, more than 90 percent of insurance plans covered it. The birth- control pill, in comparison, had been around for more than 40 years - but was not included in most American insurance plans.

That disparity sparked indignation and sent women's groups on the legislative offensive.

Since then, 20 states have passed "contraceptive-equity" laws - requiring employers who offer prescription-drug coverage to include coverage for prescription contraceptives, including the pill and intrauterine devices (IUDs). Most states, though not all, also have exemptions for churches and other purely religious organizations. In New York and California those exemptions are narrowly defined - and that's what is at issue in the courts.

In New York, the legislation is called the Women's Health and Wellness Act (WHWA). It went into effect in January 2003 and defines a religious employer as, essentially, an entity with the chief purpose of spreading its religious values, and one that primarily employs and serves people who share its religious beliefs.

That was the result of a compromise that settled an acrimonious battle. The state Assembly originally passed a bill with no exemption for religious groups. (Currently, five states have no exemption: Georgia, Iowa, New Hampshire, Vermont, and Washington State.)

The New York Senate's version contained a broad exemption, which would have included any organization "operated, supervised, or controlled by or in connection with a religious organization, denominational group or entity." If that had been approved, the current litigants - among them Catholic Charities - would be covered. But since those litigants lost in the legislature, they went to the courts for relief.

In their lawsuit, which was brought a year ago, Catholic Charities and eight other groups, including two Baptist organizations, contend that the WHWA violates their state and federal constitutional right to free exercise of religion. They argue that according to the tenets of their faith, the use of contraception is a sin; by requiring Catholic entities to pay for contraceptive coverage, the WHWA requires them to endorse a practice they belief is sinful.

"The church teaches us that contraception is sinful, yet the state is forcing us to provide it directly to our employees," says Dennis Poust, a spokesman for the New York State Catholic Conference in Albany. "That's a clear violation of our religious faith."

But on Monday, a judge dismissed the case, noting that the WHWA does exempt churches and their direct employees, but not external arms of the church that aren't directly involved in religious activities. In other words, religiously affiliated social services, like Catholic Charities, are "public actors" because they serve the public at large, rely on public funding, and employ people of diverse religions who may not share the church's teachings on contraception. Therefore, the court concluded, they must comply with state laws.

Women's groups that have fought in favor of the law see the ruling as a victory for women's health. They contend that contraceptives are part of basic healthcare for women because they allow for thoughtful family planning and reduce the incidence of abortion. They also note that the legislation says that "contraceptives also have beneficial ancillary effects, such as reducing the risk of ovarian and uterine cancer."

For these advocates, the law closes an insurance gap and ends a discriminatory practice against women. "These groups should not be able to opt out of the laws against sex discrimination," says Judy Applebaum at the National Women's Law Center in Washington. "They're entitled to press the constitutional issue, but I don't think they have a case."

But the Catholic Church's Mr. Poust is confident that they do have a case, and they intend to press it. "This is far from over. We'll fight it as far as we have to," he says. "There are important constitutional questions here. It's not about contraception, per se, but any time the state steps in to infringe on religious faith and practice, it creates a dangerous situation for the country."

California's highest court heard similar arguments in an appeal this week. A ruling is expected within 90 days.

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