Contraceptive Coverage under the Affordable Care Act: Dueling Narratives and Their Policy Implications

Article excerpt

I think there is in this country a war on religion . . . . They gave it a lot of thought and they decided to say that in this country that a church-in this case, the Catholic Church-would be required to violate its principles and its conscience and be required to provide contraceptives, sterilization and morning after pills to the employees of the church . . . . We are now all Catholics. -Mitt Romney1

If Mitt Romney and a few Republican senators get their way, employers could be making women's health care decisions for them. -Obama for America2

Guaranteeing coverage of birth control in most new health insurance plans, the Obama Administration's contraceptive coverage rule is one of the greatest advances in women's health policy in decades. The ink was barely dry on the regulation, however, before a vocal minority unleashed an unrelenting campaign to dismantle it. Opponents urged the Administration to reverse course and rescind the policy, pressed Congress to pass legislation that would override it, and took to the courts, filing over eighty lawsuits-asserting in each instance that the rule is an unprecedented erosion of religious liberty.3

The debate over the contraceptive coverage rule can be characterized by two narratives: either the contraceptive coverage rule is part of a "war on religion," as its detractors claim, or the objectors are waging a "war on women." Each narrative has its own logic. One (to which I subscribe) sounds in women's health and equality, and flows from the notion that the government has a responsibility to ensure equal treatment. The other sounds in the primacy of religion and draws on the notion that religion confers a virtually unfettered right to avoid fundamental legal obligations.

Given the outpouring of support for the contraception benefit, the prevalence of the "war on women" rhetoric in the Democrats' victorious 2012 campaign efforts, and the fact that thus far the contraceptive coverage rule has emerged mostly intact, it would be easy to assume that the women's rights narrative has carried the day. This Article argues that even in the wake of these gains, we should not underestimate the resilience behind the war on religion narrative. Its ongoing vitality continues to impact reproductive rights policy and whether and how claims sounding in religion override women's equality and access to care.

We can see this in two developments with respect to the contraceptive coverage rule itself: (1) the Administration's modifications to the rule to accommodate religiously affiliated non-profits that object to including contraception in employee health plans and (2) claims by secular businesses-through legislation and litigation-that they too should be exempt from the rule. In other words, there is ample reason for women's rights advocates to keep our antennae up.

Part I of this Article traces the development of the contraceptive coverage rule from its inception to its form as of July 1, 2013.4 Part II briefly explains how this controversy came to be understood as a largely Catholic one. Part III introduces the war on women and war on religion narratives, and in particular their interaction over the rule. Part IV looks at the accommodation the Administration created for non-profits with religious objections as a sign that the war on religion frame has traction, and explores what that might mean for other equality-advancing policies and laws. Part V does the same with respect to challenges to the contraceptive coverage rule by for-profit companies. Finally, this Article concludes with some questions to consider going forward.

In brief, although the contraceptive coverage rule thus far remains a victory, there is much work left to be done to ensure that reproductive rights protections are not overtaken by misleading claims about religious liberty.

I. THE EVOLUTION OF THE CONTRACEPTIVE COVERAGE RULE

Even before it was signed into law, the Affordable Care Act ("ACA")- or "Obamacare," as it is now affectionately called-was the subject of much discord. …