Judge Permits Moral Exemptions to Contraception, Not Just Religious Ones, for Health Plans

The ruling will most likely be appealed by the government. The ACA requires coverage for contraception as a preventive service.

Employers who object to providing contraception in health plans on moral grounds—rather than those tied to particular belief system—can seek exemption from including coverage in health plans, a federal judge ruled yesterday.

March for Life, formed after the US Supreme Court ruled in 1973 that a constitutional right to abortion existed, had brought the case because it opposes methods of contraception that it finds tantamount to abortion, including hormonal products, intrauterine devices (IUD), and emergency contraceptives.

The Affordable Care Act (ACA) required health plans to cover contraception as a preventive service but there have been difficulties in getting plans to extend coverage to some forms, especially more expensive types such as the IUD. Due to earlier court cases there are now exemptions for religious employers and groups.

HHS had said that March for Life should be treated like most employers under the ACA because “it is not religious and not a church.” But the group sought protection under the equal protection clause because its basis for existence is the shared opposition to abortion, and the use of devices or treatments that would achieve abortion.

“HHS may be correct that this objection is common among religiously affiliated employers,” Judge Richard J. Leon of the US District Court for the District of Columbia wrote. “Where HHS has erred, however is in assuming that this trait is unique to such organizations. It is not.”

An appeal by the government is expected. The judge separately agreed with 2 employees of March for Life that the HHS policy violated their individual rights to not be forced to use insurance that included coverage for some kinds of contraceptives.

The ruling comes as some plans, including those in Medicaid, are finally covering forms of contraception that had been previously denied. Just last week Medi-Cal, the system covering low-income beneficiaries in California, announced it would retroactively cover claims for the Liletta IUD device back to March 1, 2015.