The Centers for Disease Control and Prevention identifies family planning, which includes contraceptive services, as one of the major public health achievements of the 20th century.1 The high position of family planning in the public health pantheon is linked to its importance in averting unintended pregnancy, which is associated with serious health outcomes for women, children, and their families.2 Prevention of unintended pregnancy is especially important after a woman has given birth to one child, because of the health impact of inadequately spaced births on the woman,3 her baby,4 and her previous child.5
Virtually all women of reproductive age in the United States who have ever been sexually active—more than 99%—have used contraception at some point in their lives.6 More than 80% have taken prescribed oral contraceptives, the most common form of hormonal contraception.6 Contraceptives, which today come in a variety of forms,7 are designed to prevent unintended pregnancy. In addition, certain hormonal contraceptives are prescribed to treat medical conditions such as dysmenorrhea (severe menstrual pain), menorrhagia (excessive menstrual bleeding), acne, migraines, endometriosis, and uterine fibroids.7
In the current marketplace, most large employee health benefit plans cover prescription contraception, although cost sharing varies.8 Twenty-eight states have insurance benefit mandate laws requiring plans to cover contraception, with varying accommodations for plans sponsored by religious employers.9 Contraceptive coverage is a feature of the Federal Employee Health Benefits Plan (FEHBP) as well. Beyond the connection to preventive health, one fact underlying this widespread coverage of contraception is that the coverage costs essentially nothing, because of the savings realized from avoiding unintended pregnancy.10 The National Business Group on Health, which advocates on behalf of large employers, recommends employer coverage of the full range of contraceptive services on the basis of cost savings.11 The cost neutrality of contraceptive coverage can be seen in evidence from the implementation of other mandates to cover contraception. In 1999, when the FEHBP was required by law to cover contraception,12 there was no need to increase insurance premiums, even for those plans that had not previously covered contraception, because there was no cost associated with the additional coverage.13 Since that time, federal appropriations legislation has included the same language.14 Hawaii's 1999 contraceptive insurance coverage mandate also did not appear to increase the costs of the insurance plans Hawaii surveyed after implementation.15 This evidence may not be a precise predictor of the cost impact of the Patient Protection and Affordable Care Act (ACA)16 coverage requirement because patient cost sharing can have a significant impact on estimating actuarial costs, and it is not clear whether patient cost sharing, which is prohibited by the ACA, was allowed in these earlier cases. At the same time, these earlier studies offer persuasive evidence of the cost neutrality of contraception coverage.
Whether the exclusion of contraception from an employer-sponsored health plan that otherwise covers prescription drugs constitutes a violation of federal civil rights law is open to question. This issue has arisen as a result of the Pregnancy Discrimination Act of 1978, which amended Title VII of the 1964 Civil Rights Act to specifically bar discrimination on the basis of “pregnancy, childbirth, or related medical conditions” as a type of sex discrimination.17 Both the Equal Employment Opportunity Commission and at least one federal court have concluded that an exclusion of contraception for women amounts to an unlawful sex-based exclusion.18,19 However, another federal court found that no discrimination exists so long as contraception used by men is also excluded.20
A separate legal question is whether religious employers—that is, employers that are churches or are affiliated with churches, or even employers that simply claim a religious or moral position—should be excused from compliance with a broadly and uniformly applicable public health law. This issue is a long-standing one that has arisen in numerous contexts, including employment law and laws regulating health-care professionals, such as laws requiring licensed pharmacies to dispense all legally prescribed medications. Under U.S. Supreme Court precedent, the right of free exercise of religion “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”21,22