Guest Blog: Professor Joan Krause, Some Thoughts from a Health Lawyer on Hobby Lobby
July 2, 2014
As a health law professor who teaches a course on women’s health care issues, I have been following the ACA contraceptive mandate debate with great interest and more than a little trepidation. I admit to rather mixed feelings about the outcome: disappointment, relief that the decision wasn’t broader (at least on its face), concern for what comes next, and frustration regarding the choices that created this situation in the first place. With the benefit of hindsight, I can’t help wishing we’d found another way right from the start.
Many aspects of the contraceptive mandate debate have long struck me as curious. For one thing, it’s clear that the government does indeed have less restrictive alternatives to ensure broad access to low- or no-cost contraceptives. The Obama Administration could have extended to closely-held religious corporations the same accommodation it offered to religious non-profits, which essentially requires insurers to cover these costs. Whether the Administration should do so now, before the Court has squarely addressed the wide-open question of the sufficiency of that accommodation, is a different matter, however. Others have suggested alternative means to provide access to contraceptives, ranging from government-funded distribution to tax credits. Each has disadvantages, of course, and I can understand how the mandate would appear to be a more efficient option. But that choice relied heavily on the assumption that RFRA would not be applied to corporations – an assumption that, in a post-Citizens United world, was a risky proposition.
The emphasis on Plan B, particularly in media coverage of the litigation, has also struck me as curious. Perhaps it’s simply that Plan B has long been in the news, while the battle raged over whether, when, and to whom it would be made available over-the-counter (OTC). In June 2013, Plan B One-Step was approved as a nonprescription product for all women of child-bearing potential. Broad and timely access to emergency contraceptives such as Plan B is crucial, as there is a relatively short time period for these drugs to be effective in preventing pregnancy after unprotected sex. But the expanded OTC access also fell into a little-noticed loophole under the ACA, which only mandates coverage of contraceptives that are prescribed by a health care provider. That means that a woman who purchases Plan B (or contraceptive sponges or spermicides, for that matter) without a prescription must pay out-of-pocket. In order to obtain ACA coverage of Plan B, a woman would need to obtain a doctor’s prescription, the exact barrier to access that the OTC approval was designed to address. The population of women who both receive insurance from the types of corporations covered by the decision and are able to obtain a doctor’s timely prescription for Plan B may not be very large; moreover, those women still will be able to purchase the drug OTC (although for a fee). In short, this may not be the population we are most worried about. And to the extent access to Plan B may be impeded on a broader level by the continued existence of conscience protections that permit pharmacists in many states to refuse to stock or dispense the drug, the contraceptive mandate really does not address that barrier.
From an access perspective, the bigger problem may be the inclusion of certain intrauterine devices (IUDs) in the categories of contraception to which the litigants objected. While IUDs can be used as emergency contraceptives, their more common use is as a standard form of contraception that lasts longer than birth control pills, with fewer side effects. IUDs have a long and not entirely positive history as a form of birth control (recall the Dalkon Shield), but new advances have made them a popular and economical contraceptive alternative. If employers are allowed to refuse to cover IUDs as standard forms of contraception because, in rare instances, the devices may work after fertilization rather than before, the decision will affect the contraceptive choices of many women beyond those seeking emergency contraception.
Finally, I wonder whether the choice to characterize contraceptives as preventive care was, in retrospect, the right one. From a policy perspective, control over procreation is crucial to allowing women to be full participants in society; providing contraceptives at no cost assures that this protection is not limited by socioeconomic status. But highlighting the role of contraceptives in preventing pregnancy has its own disadvantages: it pathologizes what is usually considered to be a natural life process, and draws attention to the potential link to abortion. Nor is the “prevention” description entirely accurate: many women take these drugs not to avoid pregnancy, but rather to treat debilitating reproductive-related conditions such as endometriosis.
Essential Health Benefits
The alternative would have been to leave contraceptives to be covered as prescription drugs, another category of “essential health benefits” under the ACA. In fact, this is how most employers (including many religiously-affiliated ones) have handled birth control pills for years. The benefits would have been more limited: the ACA does not require coverage of every FDA-approved drug in a therapeutic class, and – perhaps most importantly – patients are required to pay a copayment rather than receiving the products for free. Yet conceptually, it is much more difficult to argue that one subset of long-covered FDA-approved drugs should be singled out for special restrictions than it is to oppose a special mandate for a product specifically designed to prevent pregnancy. That is not to say that some employers, notably religious institutions with longstanding objections to contraception, would not have challenged these provisions as well. But bytreating contraceptives as a special category of preventive services, however well-intentioned, the government in essence issued a wide-open invitation to the types of religiously based challenges we saw come to fruition in Hobby Lobby.
Does Hobby Lobby spell the end of the ACA, or the end of contraceptive access for women? Clearly not. But with the benefit of hindsight, I can’t help wishing we’d found another way right from the start.