"Contraception" is again a fighting word in American politics, thanks to a U.S. Supreme Court decision that seemingly plucked an argument out of the early 20th century and thrust it into the 21st. The June 30 ruling in Burwell vs. Hobby Lobby gave closely held corporations a green light to deny birth-control coverage to their employees on religious grounds, leaving religious conservatives cheering and many American women wondering whether their preferred birth-control method would still be covered by work-related health plans.
That dispute has now come to a legislative campaign near you. It hasn't gone unnoticed by legislators across the country that the Hobby Lobby ruling was grounded in federal law, not the U.S. Constitution. The 5-4 majority opinion asserted that one federal law, the Affordable Care Act of 2010, could not take precedence over another, the Religious Freedom Restoration Act of 1993.
That suggests state legislatures remain free to enact their own requirements about employer-provided insurance coverage of contraceptive drugs and treatments — or so say the National Women's Law Center and, in Minnesota, House DFL Majority Leader Erin Murphy of St. Paul. A former nurse, Murphy has been promoting a state mandate for contraception coverage for some time. In 2012, she took the idea to the floor as an amendment to a larger bill, where it was rejected by what was then a GOP-controlled House.
In 2015, Murphy wants to try again. She intends to sponsor changes in state law that affect both employers that purchase insurance for their employees and those that are self-insured, using different legal mechanisms to achieve the goal of full insurance coverage of all FDA-approved contraceptive drugs or treatments. Religious non-profit employers would be exempted. The bill would also require closely held businesses to disclose to job candidates and employees any other limitations on health benefits they impose on religious grounds.
The legal ground on which the proposed legislation would sit is firm only in part. Twenty-six states have employed one of the legal stratagems Murphy's bill would use, and courts in two of those states have upheld it, said Gretchen Borchelt, senior counsel at the National Women's Law Center. She ascribes less legal assurance to another feature of the bill, which would define a self-insured employer's refusal to cover birth control as an instance of gender discrimination prohibited by the state Human Rights Act. That's how the federal Equal Employment Opportunity Commission defines it, but the Eighth Circuit Court of Appeals has disagreed.
As House majority leader, Murphy is a key DFL campaign strategist this year. That role, the legal uncertainty surrounding the issue, and the timing of her announcement — a full five months before the 2015 Legislature convenes — have raised suspicion that her proposal is more about 2014 election politics than 2015 lawmaking. But it would be wrong to dismiss her proposal as a mere campaign ploy. State governments have good reason to want to keep contraception readily available.
In the half-century since the Pill was introduced, contraception has become fundamental to the health of women and their ability to manage their lives and participate in the economy. The surge of women into the U.S. workforce that began in the 1970s may not have happened without it. According to the Guttmacher Institute, 62 percent of American women of reproductive age (15 to 44) currently use a contraceptive method, many at least in part for a medical reason other than birth control, Guttmacher says.
The Hobby Lobby court decision has put affordable access to contraception in doubt for the millions of women who work for closely held corporations. And affordability matters. It explains why Guttmacher's study found contraception use higher among women with middle and upper incomes than among low-income women.
