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Legislative Memo: Women’s Health and Wellness

This bill would require certain health insurance policies to cover health and medical needs affecting women.

The bill would establish or increase minimum coverage requirements for mammograms and bone density measurements and drugs; it would require coverage of prescription contraceptives in policies that cover other prescription drugs; it would require notice to women subscribers of their right to direct access to obstetric and gynecologic services; and it would 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 urges passage of this bill.

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 decision requiring two employers who provided coverage for certain similar types of drugs, devices and preventive care to offer the same coverage for prescription contraceptives.

In its decision the EEOC 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 mammography screening and 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.

The State Senate has passed a bill, S.3 sponsored by Senator Bruno, that mirrors some of the provisions of this bill. In general, Senator Bruno’s bill provides lower baselines of protection for women’s health than this bill does. But in particular, Senate bill S.3 excludes from mandatory coverage of prescription contraception any employers, groups, insurers or health maintenance organizations who hold religious tenets contrary to the diagnosis and treatment otherwise required to be covered.

This would exclude from the protections of that section of the bill the potentially large number of women whose employers are “operated, supervised or controlled by or in connection with a religious organization or denominational group or entity” that holds such beliefs.

It would also exclude from coverage a potentially even larger number of women whose employers select an insurer or health maintenance organization that is “operated, sponsored or controlled by or in connection with a religious organization or denominational group or entity” holding such beliefs.

The NYCLU recognizes that individuals may have certain rights to conduct themselves in accordance with their conscientious beliefs. When, however, individuals enter the marketplace to offer services that are primarily commercial and secular in nature, an unfettered right to deny services on the basis of religious or other belief systems may well yield to an obligation to provide services consistent with professional responsibilities, anti-discrimination laws and other laws of general applicability.

Moreover, when it is an institution, rather than an individual, that enters that marketplace, the institution may be accorded even less solicitude in balancing its claims against the obligation to provide those services, particularly when an exemption would be harmful to third parties who do not share the institution’s beliefs.

And while, in some circumstances, these claims for religious or other exemptions may raise potentially nuanced and subtle questions, the provisions at issue here present only a question of equal financial coverage for prescriptions.

Requiring entities that have chosen to act as insurers, and employers selecting health insurance policies, to provide policies that cover prescription contraceptives on an equal basis to other prescriptions does not place the kind of burden on religious beliefs that would justify the exclusion of women from equal access to health care. A conscientious objection to certain government programs does not exempt individuals or entities from paying taxes, notwithstanding that some of those funds may be spent on programs to which they object.

In this case, a religious objection to certain health care choices should not exempt employers or insurers from providing policies that equitably reimburse all subscribers for their medical needs. Accordingly, the NYCLU supports full equity in coverage for prescription contraception, without the exemption provided in Senate bill S.3.

For the reasons stated above, the NYCLU supports passage of A.2006.

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