Arizona Bill Would Let More Employers Nix Contraceptive Coverage

March 15, 2012 — -- A state bill in Arizona would expand the right to deny contraception health coverage for all employers who carry religious beliefs, not just churches.

Patrick McNerney, owner of Ave Maria Pharmacy in Prescott Valley, Ariz., said he supports the bill because he does not sell contraception in his pharmacy.

McNerney's four employees are family members who are covered under his insurance plan. But he said if his business one day expanded and provided insurance for its employees he would not want to be forced to pay for coverage for contraception because of his Catholic beliefs.

He runs a "pro-life pharmacy" and the issue is not covering the cost of contraceptives, the generic versions of which can cost $9 a month, he said.

"I specifically opened this pharmacy so I could practice according to the morals of the Catholic Church that I live by," McNerney, 58, said.

Arizona's House Bill 2625 was endorsed by the state's Senate Judiciary Committee this week after passing the House. The law could be approved by the State Senate and signed into law by Gov. Janice Brewer in the next month, said Deborah Sheasby, legal counsel for the Center for Arizona Policy, which supports the bill.

The bill reforms a state contraception mandate that was passed in 2002, the Contraceptive Equity Law. That law required insurers to allow access to all FDA-approved drugs, including emergency contraceptive drugs. But that law provides exception to a "religious employer" that "primarily employs persons who share the religious tenets of the entity" and "serves persons who share the religious tenets of the entity."

One aspect of the bill that has attracted criticism but is already in the 2002 law requires those employed by an employer prohibiting contraception coverage to submit a doctor's prescription if a contraceptive drug is required for medical purposes.

Bryan Howard, president of Planned Parenthood Arizona, called that provision "extraordinary" that women with a religious employer could access birth control from a plan that otherwise doesn't cover it if they can attest they are not taking the contraception in order to have sex, regardless of whether they are married or not.

At issue is not whether one should or should not use contraception, Sheasby said.

"The bill is about the religious liberties of employers and paying for something against their religious beliefs," she said.

Sheasby said the 2002 law's exemption was "so narrow" that it only applied to churches or houses of worship, and forced faith-based social service groups and businesses to pay for or support services that were against their beliefs.

Ron Johnson, executive director of the Arizona Catholic Conference, represents the five bishops in the state in the matter. The conference failed in its attempt to get the 2002 law vetoed after it was passed.

He said under the current law, which provides an exemption to entities that hire and serve people of the same faith, "Jesus couldn't qualify because he helped anyone."

Howard disagrees that the issue is about religious freedom.

"The idea that this has to do with religious freedom as opposed to women's health and healthcare is rather odd because if contraception is withheld on religious grounds of an employer, what he or she is doing is taking away the religious liberty of all his female employees who are no longer able to access healthcare according to their faith," he said.

Howard called it "disappointing" that women had contraceptive health access for a decade until the bill was introduced, calling it a "setback" to equal access to medication.

Johnson points out that the bill won't allow just any employer to require a prescription for contraceptives, but only those that have religious beliefs against paying for them. And he said the incentive for an employer to fake religious beliefs to get out of contraceptive coverage for economic reasons seems "extremely unlikely."

"The fact is employers were covering it anyway," he said. "I don't think employers are going to take unnecessary grief [to remove coverage] unless they have these beliefs."

Johnson said the number of private employers who are seeking this exemption "is actually a pretty small universe."

"But it's very important to them," he said. "That's not to say we are not concerned about women's health or all people. This is about religious liberties and protecting those rights."

McNerney said he was in favor of allowing the free market determine what should be included in insurance plans.

"If that's not included in the compensation package of the company you work for, and it's that important to you, you could always look for a job in another place," he said.

Joan Williams, law professor and director of the Center for Work Life Law at the University of California, Hastings, said similar bills have been introduced across the country, which she called "troubling" from a constitutional viewpoint.

"I understand it can be troubling for someone who doesn't believe in contraception to have to cover contraception as part of health coverage," she said. "But number one, women have a constitutional right to control their reproductive lives and to say to any women, 'You have no constitutional right if you're employed [by a religious employer],' leaves no constitutional right."

The Center for Arizona Policy, which represents several evangelical churches in Arizona, does not take a position on contraception but says it supports the bill because it supports "religious liberties."

Sheasby said that sentiment is in line "across the board" with those of many churches and pastors who also do not take a position on the use of contraceptives.