hhs birth control photo

Contraceptive Compromise Lawsuits Still Pending

The debate continues regarding the new mandate for coverage of contraceptives as proposed by the White House.  Liberal Catholic figures have applauded the White House for seeking ways to resolve the concerns of objecting religious institutions.  Yet, the Becket Fund filed 47 cases for what it calls the affirmation of the freedom of religion guaranteed in the Constitution, or an injunction against having to comply with the mandate.   The new proposal works to find a middle ground between religious opposition to contraceptives and women’s health advocates who support coverage of birth control without co-payment.

In summary, the proposal would allow nonprofits to provide plans that do not cover contraceptives, but would require their insurer to automatically enroll the employee in a separate individual policy covering only contraceptives, at no cost.    Thus, the nonprofit would not have to contract or pay for contraceptive coverage or otherwise go against their religious beliefs. Self-insured plans would also be permitted to opt out of the contraceptive coverage with various caveats and offsets by the federal government for insurers who create plans for these self-insured companies.

The majority of the 47 lawsuits were filed on behalf of Roman Catholic entities.  Fourteen of the 47 were filed on behalf of for profit companies, eleven of which obtained injunctions permitting non-compliance for the time being.  Three other injunctions of the 14 have been denied.  On the non-profit front, seven of the cases were dismissed by the court on procedural issues while the majority of others are pending a decision.

Forty-three million (or one in ten) women of childbearing age are at the heart of this dispute as they are the ones at risk of an unintended pregnancy.   It is estimated that there are 3.1 million unintended pregnancies each year, but less than 5% of those are of women who practice contraception consistently and correctly.

U.S. family planning clinics reported that most women want only two children, but to achieve this goal a woman must use contraceptives for roughly three decades.  For patients not covered by insurance, the pill typically costs $20-$50 a month, or what could be $18,000+ over the women’s child-bearing years just in pills alone.

What is even more interesting is that many of the women protected by the mandate belong to religious denominations bringing the injunction suits.  Many denominational women use a highly effective method of contraception (i.e. sterilization, the pill or another hormonal method, or the IUD).

Kimberly Lambert is a shareholder at the Levin Papantonio Law Firm. Lambert focuses her practice on personal injury, mass tort litigation, products liability litigation, wrongful death, and admiralty/maritime law.

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