The Wafer And The Pill

Louise Melling

October 25, 2006

Louise Melling is the Director of the ACLU Reproductive Freedom Project.

Last week, the highest court in New York upheld the Women’s Health and Wellness Act, a law requiring, among other things, that insurance companies include contraceptive coverage in drug benefit packages. The unanimous decision was a victory for women’s health and an important step toward ending gender discrimination in insurance coverage. In Catholic Charities v. Serio, the court found that the Act struck a careful and fair balance between the need to promote women’s health, end gender discrimination and preserve religious freedom.

The New York legislature passed the Act in an effort to expand health insurance coverage for a variety of services needed by women, including mammography, cervical cytology and bone density screening. The challenge before the court—brought by 10 religiously affiliated social service organizations, including Catholic Charities—focused on one particular provision of the law mandating that insurance plans offering coverage for prescription drugs must include coverage for contraceptives. These groups do not meet the law’s exception allowing some religious employers to refuse to cover contraceptives.

Contraception is a basic health need for women. When employers exclude contraception from otherwise comprehensive prescription drug plans they discriminate against women. Studies show that women pay 68 percent more than men in out-of-pocket expenses for health care, and the primary reason for the discrepancy is reproductive health care costs. 

Nevertheless, Catholic Charities and other religiously affiliated social service organizations cried foul. They believe contraception to be sinful and don’t think they should have to pay for it. 

The sincerity of their religious beliefs was never in question in this case. Nor were the good works of such organizations. The United States has a long and rich history of religiously affiliated social service organizations providing not only an admirable but also an essential service to the American people. But supporting the work of faith-based social service providers should not mean abandoning the basic American ideal of fairness.

The Act does not compel any employers—religious or otherwise—to provide contraceptive coverage. But it does mandate that if an employer chooses to provide prescription coverage for its employees such policies cannot exclude prescription contraceptives. The exception to the rule: religious employers such as churches, mosques, and temples, whose main purpose is to promote a particular religious faith and who primarily employ and serve people who share their religious beliefs. 

By their own admission, organizations such as Catholic Charities do not administer only to the faithful. They employ and serve people of diverse faiths and provide a host of social services from immigrant resettlement to domestic violence shelters to job development programs. In other words, they play in the public sphere and must abide by public rules. As the court noted, “when a religious organization chooses to hire non-believers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests.”

Last week’s decision is aligned with an earlier decision by the California Supreme Court upholding a similar California law, the California Women’s Contraceptive Equity Act. As with the New York court, the California court determined that the law at issue struck the proper balance between protecting religious freedom and eliminating gender discrimination. The U.S. Supreme Court refused to hear the California case on appeal.

We are all served by laws that protect not only the ability of people to follow their faith in religious settings, but also that ensure that everyone is treated fairly and equally in the public sphere. Sometimes this requires a delicate balance to be struck, but it is a balance we cannot afford to live without.