Republicans attack ACA's contraceptive coverage in court

It had to happen sooner or later. Republicans are taking the issue of the ACA's mandatory contraceptive coverage provisions to court. On February 15, the Labor Department, the HHS, and the IRS issued regulations reaffirming that certain religious employers are allowed an exemption for covering FDA-approved contraceptives as a part of a health plan. However, beginning August 1, 2012, most new and renewed health plans will be required to provide contraceptive services for women without cost sharing.

Previously-published regulations added eight preventive services for women, including contraceptive services, which health plans must cover at no cost to patients, under Public Health Service Act Sec. 2713, as added by the Patient Protection and Affordable Care Act (ACA). Certain nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan have until the first plan year that begins on or after August 1, 2013 to comply, but must provide certification that they qualify for the delayed implementation.

The DOL, HHS, and IRS have stated that they plan, during this temporary enforcement safe harbor, to develop and propose changes to the final regulations that would allow plans to provide contraceptive coverage without cost-sharing to those who want it and would accommodate non-exempted, nonprofit organizations' religious objections to covering these services.

Now, Nebraska Attorney General Jon Bruning and 6 other state attorneys general, from Florida, Michigan, Ohio, Oklahoma, South Carolina and Texas, have filed suit in the United States District Court, District of Nebraska, requesting a permanent injunction of the regulations. Co-plaintiffs include Pius X Catholic High School, Catholic Social Services, The Catholic Mutual Relief Society of America and private citizens Stacy Molai and Sister Mary Catherine, CK.

A news release on Bruning’s website quotes him as stating that, “This regulation forces millions of Americans to choose between following religious convictions and complying with federal law.” He adds, “This violation of the 1st Amendment is a threat to every American, regardless of religious faith. We will not stand idly by while our constitutionally-guaranteed liberties are discarded by an administration that has sworn to uphold them.”

The plaintiffs are alleging that the newly-published regulations violate the First Amendment, as well as the Religious Freedom Restoration Act by requiring religious-affiliated organizations, including hospitals and schools, to purchase employee health insurance that covers services such as sterilization and provision of contraceptives.

One of the private plaintiffs, Sister Mary Catherine, is covered by Blue Cross Blue Shield of Nebraska through the Catholic Diocese of Lincoln, Nebraska. According to the complaint, her health insurance plan was specifically contracted for to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services. The complaint states that she will drop her private health insurance coverage if retaining such coverage would result in the subsidization of those services.

Her plan is apparently not a grandfathered plan exempt from certain ACA requirements, so it is subject to the contraceptive coverage provisions.

Another private plaintiff, Stacy Molai, is a Catholic missionary employed by the Fellowship of Catholic University Students (“FOCUS”), and she is covered by a health insurance plan with Cigna through FOCUS. Her health insurance plan was also specifically contracted to exclude coverage for contraceptive and related services.

The complaint alleges that Molai suffers from an incurable chronic illness which requires substantial ongoing care involving costs of $300 to $400 per month, not including occasional hospitalization and surgery. Her coverage is necessary in order for her to avoid financial ruin, according to the court documents, but she is willing to drop her coverage if the contraceptive services will be covered. Because her plan is grandfathered from ACA requirements, she is alleging that, should FOCUS substantially change any aspect of her health insurance plan, the plan will immediately become subject to ACA requirements, including its contraceptive coverage rule.

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