Q JINN
2012-02-10 00:51:49 UTC
http://motherjones.com/politics/2012/02/controversial-obama-birth-control-=
rule-already-law
Mother Jones Blogs and Articles
Top Stories=A0
Most of Obama's "Controversial" Birth Control Rule Was Law During Bush
Years
The right has freaked out over an Obama administration rule requiring
employers to offer birth control to their employees. Most companies
already had to do that.
By Nick Baumann=A0
Wed Feb. 8, 2012 2:10 PM PST
Pete Souza=A0 /The White House
President Barack Obama's decision to require most employers to cover
birth control and insurers to offer it at no cost has created a
firestorm of controversy.
But the central mandate that most employers have to cover preventative
care for women has been law for over a decade. This point has been
completely lost in the current controversy, as Republican presidential
candidates and social conservatives claim that Obama has launched a war
on religious liberty and the Catholic Church.
Despite the longstanding precedent, "no one screamed" until now, said
Sara Rosenbaum, a health law expert at George Washington University.
In December 2000, the Equal Employment Opportunity Commission ruled=A0
that companies that provided prescription drugs to their employees but
didn't provide birth control were in violation of Title VII of the 1964
Civil Rights Act, which prevents discrimination on the basis of sex.
That opinion, which the George W. Bush administration did nothing to
alter or withdraw when it took office the next month, is still in effect
today and because it relies on Title VII of the Civil Rights Act, it
applies to all employers with 15 or more employees.
Employers that don't offer prescription coverage or don't offer
insurance at all are exempt, because they treat men and women equally
but under the EEOC's interpretation of the law, you can't offer other
preventative care coverage without offering birth control coverage, too.
"It was, we thought at the time, a fairly straightforward application of
Title VII principles," a top former EEOC official who was involved in
the decision told Mother Jones. "All of these plans covered Viagra
immediately, without thinking, and they were still declining to cover
prescription contraceptives. It's a little bit jaw-dropping to see what
is going on now "There was some press at the time but we issued
guidances that were far, far more controversial."
After the EEOC opinion was approved in 2000, reproductive rights groups
and employees who wanted birth control access sued employers that
refused to comply. The next year, in Erickson v. Bartell Drug Co., a
federal court agreed with the EEOC's reasoning. Reproductive rights
groups and others used that decision as leverage to force other
companies to settle lawsuits and agree to change their insurance plans
to include birth control.
Some subsequent court decisions echoed Erickson, and some went the other
way, but the rule (absent a Supreme Court decision) remained, and=A0over
the following decade, the percentage of employer-based plans offering
contraceptive coverage tripled to 90 percent.
"We have used [the EEOC ruling] many times in negotiating with various
employers," says Judy Waxman, the vice president for health and
reproductive rights at the National Women's Law Center. "It has been in
active use all this time. [President Obama's]=A0policy is only new in
the sense that it covers employers with less than 15 employees and with
no copay for the individual. The basic rule has been in place since
2000."
Not even religious employers were exempt from the impact of the EEOC
decision. Although Title VII allows religious institutions to
discriminate on religious grounds, it doesn't allow them to discriminate
on the basis of sex=A0 the kind of discrimination at issue in the EEOC
ruling. DePaul University, the largest Roman Catholic university in
America, added birth control coverage to its plans=A0 after receiving an
EEOC complaint several years ago. (DePaul officials did not respond to a
request for comment.)
As recently as last year, the EEOC was moderating a dispute between the
administrators of Belmont Abbey, a Catholic institution in North
Carolina, and several of its employees who had their birth control
coverage withdrawn after administrators realized it was being offered.
The Weekly Standard opined on the issue in 2009=A0 more proof that
religious employers were being asked to cover contraception far before
the Obama administration issued its new rule on January 20 of this year.
"The current freakout," Judy Waxman says, is largely occurring because
the EEOC policy "isn't as widely known and it hasn't been uniformly
enforced." But it's still unclear whether Obama's Health and Human
Services department will enforce the new rule any more harshly than the
old one. The administration has already given organizations a year-long
grace period to comply. Asked to explain how the agency would make
employers do what it wanted, an HHS official told Mother Jones that it
would "enforce this the same way we enforce everything else in the law."
=A0
Nick Baumann=A0
News Editor
Nick Baumann covers national politics and civil liberties issues for
Mother Jones' DC Bureau. For more of his stories, click here=A0 . You
can also follow him on Twitter=A0 and Facebook=A0 . Email tips and
insights to nbaumann [at] motherjones [dot] com.
rule-already-law
Mother Jones Blogs and Articles
Top Stories=A0
Most of Obama's "Controversial" Birth Control Rule Was Law During Bush
Years
The right has freaked out over an Obama administration rule requiring
employers to offer birth control to their employees. Most companies
already had to do that.
By Nick Baumann=A0
Wed Feb. 8, 2012 2:10 PM PST
Pete Souza=A0 /The White House
President Barack Obama's decision to require most employers to cover
birth control and insurers to offer it at no cost has created a
firestorm of controversy.
But the central mandate that most employers have to cover preventative
care for women has been law for over a decade. This point has been
completely lost in the current controversy, as Republican presidential
candidates and social conservatives claim that Obama has launched a war
on religious liberty and the Catholic Church.
Despite the longstanding precedent, "no one screamed" until now, said
Sara Rosenbaum, a health law expert at George Washington University.
In December 2000, the Equal Employment Opportunity Commission ruled=A0
that companies that provided prescription drugs to their employees but
didn't provide birth control were in violation of Title VII of the 1964
Civil Rights Act, which prevents discrimination on the basis of sex.
That opinion, which the George W. Bush administration did nothing to
alter or withdraw when it took office the next month, is still in effect
today and because it relies on Title VII of the Civil Rights Act, it
applies to all employers with 15 or more employees.
Employers that don't offer prescription coverage or don't offer
insurance at all are exempt, because they treat men and women equally
but under the EEOC's interpretation of the law, you can't offer other
preventative care coverage without offering birth control coverage, too.
"It was, we thought at the time, a fairly straightforward application of
Title VII principles," a top former EEOC official who was involved in
the decision told Mother Jones. "All of these plans covered Viagra
immediately, without thinking, and they were still declining to cover
prescription contraceptives. It's a little bit jaw-dropping to see what
is going on now "There was some press at the time but we issued
guidances that were far, far more controversial."
After the EEOC opinion was approved in 2000, reproductive rights groups
and employees who wanted birth control access sued employers that
refused to comply. The next year, in Erickson v. Bartell Drug Co., a
federal court agreed with the EEOC's reasoning. Reproductive rights
groups and others used that decision as leverage to force other
companies to settle lawsuits and agree to change their insurance plans
to include birth control.
Some subsequent court decisions echoed Erickson, and some went the other
way, but the rule (absent a Supreme Court decision) remained, and=A0over
the following decade, the percentage of employer-based plans offering
contraceptive coverage tripled to 90 percent.
"We have used [the EEOC ruling] many times in negotiating with various
employers," says Judy Waxman, the vice president for health and
reproductive rights at the National Women's Law Center. "It has been in
active use all this time. [President Obama's]=A0policy is only new in
the sense that it covers employers with less than 15 employees and with
no copay for the individual. The basic rule has been in place since
2000."
Not even religious employers were exempt from the impact of the EEOC
decision. Although Title VII allows religious institutions to
discriminate on religious grounds, it doesn't allow them to discriminate
on the basis of sex=A0 the kind of discrimination at issue in the EEOC
ruling. DePaul University, the largest Roman Catholic university in
America, added birth control coverage to its plans=A0 after receiving an
EEOC complaint several years ago. (DePaul officials did not respond to a
request for comment.)
As recently as last year, the EEOC was moderating a dispute between the
administrators of Belmont Abbey, a Catholic institution in North
Carolina, and several of its employees who had their birth control
coverage withdrawn after administrators realized it was being offered.
The Weekly Standard opined on the issue in 2009=A0 more proof that
religious employers were being asked to cover contraception far before
the Obama administration issued its new rule on January 20 of this year.
"The current freakout," Judy Waxman says, is largely occurring because
the EEOC policy "isn't as widely known and it hasn't been uniformly
enforced." But it's still unclear whether Obama's Health and Human
Services department will enforce the new rule any more harshly than the
old one. The administration has already given organizations a year-long
grace period to comply. Asked to explain how the agency would make
employers do what it wanted, an HHS official told Mother Jones that it
would "enforce this the same way we enforce everything else in the law."
=A0
Nick Baumann=A0
News Editor
Nick Baumann covers national politics and civil liberties issues for
Mother Jones' DC Bureau. For more of his stories, click here=A0 . You
can also follow him on Twitter=A0 and Facebook=A0 . Email tips and
insights to nbaumann [at] motherjones [dot] com.