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Legislative Memo: Women’s Health and Wellness

Both the Assembly and Senate have passed legislation (A.30001 and S.6265) that would require certain health insurance policies to cover health and medical needs affecting women. (In the course of the 2001-2002 legislative cycle, these proposals have been referred to as the “Women’s Health and Wellness Act”). 

Both bills would (1) establish or increase minimum coverage requirements for mammograms and bone density measurements and drugs, (2) require coverage of prescription contraceptives in policies that cover other prescription drugs, (3) require notice to women subscribers of their right to direct access to obstetric and gynecologic services, and (4) eliminate existing provisions that exclude persons employed in more than one state from the assurance of a minimum level of coverage for mammographies and cervical cytology screening.

The NYCLU supports equal access to health care for women and therefore supports both the Senate and Assembly proposals.

These bills seek to correct an inequity, based upon gender, regarding access to healthcare. Certain health services are used primarily or exclusively by women. If insurers are able to exclude coverage of those services while covering comparable services used by men or by both genders, then women are effectively barred from equal access to health care coverage.

This fundamental inequity was recognized by the U.S. Equal Employment Opportunity Commission in a December 2000. In that ruling the Commission required two employers that provided coverage for certain similar types of drugs, devices and preventive care to offer the same coverage for prescription contraceptives.

The EEOC ruling noted that “prescription contraceptives are available only for women. As a result [the employers’] explicit refusal to offer insurance coverage for them is, by definition, a sex-based exclusion.”

The EEOC held there was reasonable cause to believe that the employers in that case had engaged in an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, by failing to offer insurance coverage for the cost of prescription contraceptive drugs and devices.

The reasoning of the EEOC would apply equally to other services used exclusively or predominately by women. To the extent that a policy covers comparable procedures, women’s health care needs should not be excluded.

Both S.6265 and A.30001 include a refusal clause (or so-called “conscience clause”) that permits a religious employer to contract for insurance policies without contraceptive coverage if contrary to its religious tenets. A religious employer is defined as one to whom the following criteria apply: the primary purpose is the inculcation of religious values; the entity primarily employs and serves persons who share its religious tenets; and the entity is a nonprofit organization under provisions of the federal tax code that grant tax exemptions to churches and certain affiliated entities. Thus, a church or seminary would fall under this exemption while a religiously affiliated hospital would not.

The NYCLU believes that this narrowly crafted refusal clause, while not constitutionally required, acceptably balances the protection of religious freedom with the overriding anti-discrimination and public health goals of the bill. The exemption applies to sectarian institutions whose purpose is to practice religion, but requires those religiously affiliated entities that operate in the secular sphere to abide by public rules.

The limited scope of the refusal clause ensures that religious doctrines do not result in the denial of health care coverage to those employees who may not share their employers’ beliefs.

Further, the same definition of religious employer has so far withstood a court challenge in California, where it is contained in that state’s contraceptive equity act. A California appeals court rejected a claim by Catholic Charities, a social service agency, that it had a constitutional right to be exempt from a contraceptive equity requirement.

Catholic Charities v. Superior Court, 109 Cal. Rptr. 2d 176 (Ct. App.), petition for review granted, 31 P.3d 1271 (Cal. 2001). (The case is now pending in the California Supreme Court.)

Under the Assembly version of the bill, a religious employer would not be permitted to deny coverage of contraceptives when prescribed for health reasons other than contraceptive purposes. Such a provision provides added protection for female employees of religious employers without burdening religious freedom and should be incorporated in the Senate bill. There are other differences between the Assembly and Senate proposals regarding out-of-pocket expenses for mammographies and cervical cancer screenings.

The Assembly version would exempt mammographies and cervical screenings from co-payments and deductibles; the Senate version would not. As a matter of public policy, the NYCLU believes that financial barriers to cancer screenings should be eliminated.

However, these bills represent an important step toward ensuring more extensive and equitable coverage for women’s health needs, and the NYCLU strongly urges that legislators not permit unresolved differences between the two proposals to forestall enactment of Women’s Health and Wellness legislation in this legislative session.

For the reasons stated above, the NYCLU supports both A.30001 and S.6265.

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