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75–050 PDF 2012

DO NEW HEALTH LAW MANDATES THREATEN 

CONSCIENCE RIGHTS AND ACCESS TO CARE? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

NOVEMBER 2, 2011 

Serial No. 112–102 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chairman 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

SUBCOMMITTEE ON HEALTH

JOSEPH R. PITTS, Pennsylvania 

Chairman 

MICHAEL C. BURGESS, Texas 

Vice Chairman 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

TIM MURPHY, Pennsylvania 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

JOHN D. DINGELL, Michigan 

EDOLPHUS TOWNS, New York 

ELIOT L. ENGEL, New York 

LOIS CAPPS, California 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

JIM MATHESON, Utah 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Joseph R. Pitts, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 1 

Prepared statement ................................................................................................. 3 

Hon. Phil Gingrey, a Representative in Congress from the State of Georgia, 

opening statement ................................................................................................ 4 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 4 

Hon. Janice D. Schakowsky, a Representative in Congress from the State 

of Illinois, opening statement .............................................................................. 5 

Hon. Michael C. Burgess, a Representative in Congress from the State of 

Texas, opening statement .................................................................................... 6 

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 7 

Hon. Tim Murphy, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 7 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 11 

WITNESSES

David L. Stevens, Chief Executive Officer, Christian Medical Association ........ 123 

Prepared statement .......................................................................................... 125 

Answers to submitted questions ...................................................................... 215 

Mark Hathaway, Director, Obstetrics and Gynecology Outreach Services for 

Women’s and Infants’ Services, Washington Hospital Center ......................... 133 

Prepared statement .......................................................................................... 135 

Answers to submitted questions ...................................................................... 218 

Jane G. Belford, Chancellor, Archdiocese of Washington, DC ............................. 139 

Prepared statement .......................................................................................... 141 

Answers to submitted questions ...................................................................... 261 

Jon O’Brien, President, Catholics for Choice ........................................................ 150 

Prepared statement .......................................................................................... 152 

Answers to submitted questions ...................................................................... 264 

William J. Cox, President and Chief Executive Officer, Alliance of Catholic 

Health Care .......................................................................................................... 163 

Prepared statement .......................................................................................... 165 

Answers to submitted questions ...................................................................... 266 

SUBMITTED MATERIAL

Letter, dated October 4, 2011, from Mr. Murphy to Kathleen Sebelius, Secretary, Department of Health and Human Services, submitted by Mr. Murphy ......................................................................................................................... 9 

Statement, dated November 2, 2011, of Hon. Jeff Fortenberry, a Representative in Congress from the State of Nebraska, submitted by Mr. Pitts ............ 13 

Statement, dated November 2, 2011, of John H. Garvey, President, The 

Catholic University of America ........................................................................... 18 

Letter, dated November 1, 2011, from Cardinal Daniel N. DiNardo, Chairman, Committee on Pro-Life Activities, United States Conference of Catholic Bishops, to Mr. Pitts, submitted by Mr. Pitts .............................................. 22 

Letter, dated November 2, 2011, from Jeanne Monahan, Director, Center 

for Human Dignity, and Chris Gacek, Senior Fellow for Regulatory Policy, 

Family Research Council, to Mr. Pitts, submitted by Mr. Pitts ....................... 30 

Statement, dated November 2, 2011, of Nancy Keenan, President, NARAL 

Pro-Choice America, submitted by Ms. Schakowsky ......................................... 46 

Page

IV 

Statement, dated November 2, 2011, of the Center for Reproductive Rights, 

submitted by Ms. Schakowsky ............................................................................ 53 

Statement, dated November 2, 2011, of Judy Waxman, Vice President for 

Health and Reproductive Rights, National Women’s Law Center, submitted 

by Ms. Schakowsky .............................................................................................. 80 

Statement, dated November 2, 2011, of Laura W. Murphy, Director, Washington Legislative Office, and Sarah Lipton-Lubet, Policy Counsel, American Civil Liberties Union, submitted by Ms. Schakowsky .............................. 83 

Statement, dated November 2, 2011, of Debra Ness, President, and Judith 

Lichtman, Senior Advisor, National Partnership for Women & Families, 

submitted by Ms. Schakowsky ............................................................................ 98 

Statement, dated November 2, 2011, of the National Health Law Program, 

submitted by Ms. Schakowsky ............................................................................ 104 

Statement, dated November 2, 2011, of Douglas Laube, Board Chair, Physicians for Reproductive Choice and Health, submitted by Ms. Schakowsky .... 115 

Letter, dated November 2, 2011, from Advocates for Youth, et al., to Mr. 

Upton, Mr. Waxman, Mr. Pitts, and Mr. Pallone, submitted by Ms. 

Schakowsky .......................................................................................................... 120 

Statement, dated October 31, 2011, of Rabbi Dennis S. Ross, Director, Concerned Clergy for Choice, The Educational Fund of Family Planning Advocates of New York State, submitted by Mr. Pallone ......................................... 175 

Statement, dated November 2, 2011, of Nancy K. Kaufman, Chief Executive 

Officer, National Council of Jewish Women, submitted by Mr. Pallone ......... 176 

Statement, dated November 2, 2011, of The Rev. Debra W. Haffner, Executive 

Director, Religious Institute, submitted by Mr. Pallone ................................... 182 

Statement, dated November 2, 2011, of The Rev. Lois M. Powell, Justice 

and Witness Ministries, United Church of Christ, submitted by Mr. Pallone 183 

Letter, dated October 31, 2011, from Mary E. Hunt, Co-director, Women’s 

Alliance for Theology, Ethics, and Ritual, to committee members, submitted 

by Mr. Pallone ...................................................................................................... 184 

Statement, dated November 2, 2011, of The Rev. Dr. Carlton W. Veazey, 

President and Chief Executive Officer, Religious Coalition for Reproductive 

Choice, submitted by Mr. Pallone ....................................................................... 186 

Letter, dated November 1, 2011, from James E. Winkler, General Secretary, 

General Board of Church and Society of The United Methodist Church, 

to subcommittee members, submitted by Mr. Pallone ...................................... 189 

(1) 

DO NEW HEALTH LAW MANDATES THREATEN 

CONSCIENCE RIGHTS AND ACCESS TO CARE? 

WEDNESDAY, NOVEMBER 2, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HEALTH, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:05 a.m., in room 

2123 of the Rayburn House Office Building, Hon. Joseph R. Pitts 

(chairman of the subcommittee) presiding. 

Members present: Representatives Pitts, Burgess, Shimkus, Murphy, Blackburn, Gingrey, Latta, McMorris Rodgers, Lance, Cassidy, 

Guthrie, Pallone, Dingell, Towns, Engel, Capps, Schakowsky, Baldwin, Matheson, Christensen, and Waxman (ex officio). 

Staff present: Carl Anderson, Counsel, Oversight; Marty 

Dannenfelser, Senior Advisor, Health Policy and Coalitions; Brenda 

Destro, Professional Staff Member, Health; Andy Duberstein, Special Assistant to Chairman Upton; Paul Edattel, Professional Staff 

Member, Health; Ryan Long, Chief Counsel, Health; Nika Nour, 

New Media Specialist; Katie Novaria, Legislative Clerk; John 

O’Shea, Professional Staff Member, Health; Heidi Stirrup, Health 

Policy Coordinator; Phil Barnett, Democratic Staff Director; Alli 

Corr, Democratic Policy Analyst; Ruth Katz, Democratic Chief Public Health Counsel; Karen Lightfoot, Democratic Communications 

Director and Senior Policy Advisor; Elizabeth Letter, Democratic 

Assistant Press Secretary; Anne Morris Reid, Democratic Professional Staff Member; and Tim Westmoreland, Democratic Consulting Counsel. 

OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF PENNSYLVANIA 

Mr. PITTS. The subcommittee will come to order. The Chair recognizes himself for 5 minutes for an opening statement. 

On August 3, 2011, the Department of Health and Human Services issued an interim final rule that would require nearly all private health plans to cover contraception and sterilization as part 

of their preventive services for women. 

While the rule does include a religious exemption, many entities 

feel that it is inadequate and violates their conscience rights by 

forcing them to provide coverage for services for which they have 

a moral or ethical objection. 

The religious employer exemption allowed under the preventive 

services rule—at the discretion of the HRSA—is very narrow. And 

2 

the definition offers no conscience protection to individuals, schools, 

hospitals, or charities that hire or serve people of all faiths in their 

communities. 

It is ironic that the proponents of the healthcare law talked 

about the need to expand access to services but the administration 

issues rules that could force providers to stop seeing patients because to do so could violate the core tenets of their religion. 

I am also concerned about the process HHS used to issue the 

rule. The interim final rule was promulgated before the proposed 

rulemaking and the formal comment period were conducted by 

HHS. In issuing the rule, HHS acknowledged that it bypassed the 

normal rulemaking procedures in order to expedite the availability 

of preventive services to college students beginning the school year 

in August. HHS argued that there would be a year’s delay in the 

receipt of the new benefit if the public comment period delayed the 

issuance of HRSA guidance for over a month. 

I believe that on such a sensitive issue there should have been 

a formal comment period so that all sides could weigh in on the 

issue and HHS could benefit from a variety of views. When the 

healthcare law was being debated last Congress, the proponents 

adamantly refuted claims that this would be a Federal Government 

takeover of our healthcare system. 

Now, we have the Federal Department of Health and Human 

Services forcing every single person in this country to pay for services that they may morally oppose. Groups who have for centuries 

cared for the sick and poor will now be forced to violate their religious beliefs if they want to continue to serve their communities. 

Whether one supports or opposes the healthcare law, we should 

universally support the notion that the Federal Government should 

be prohibited from taking coercive actions to force people to abandon their religious principles. 

I look forward to hearing from our witnesses. Thank you all for 

being here, and I yield the balance of my time to Dr. Gingrey from 

Georgia. 

[The prepared statement of Mr. Pitts follows:] 

3 


75050.221

Opening Statement of the Honorable Joseph R. Pitts 

Energy and Commerce Subcommittee on Health 

"Do New Health Law Mandates Threaten Conscience 

Rights and Access to Care?" 

November 2, 2011 

(As Prepared for Delivery) 

On August 3, 2011, the Department of Health and Human Services issued an interim final 

rule that would require nearly all private health plans to cover contraception and 

sterilization as part of their preventive services for women. 

While the rule does include a religious exemption, many entities feel that it is inadequate 

and violates their conscience rights by forcing them to provide coverage for services for 

which they have a moral or ethical objection. 

The religious employer exemption allowed under the preventive services rul'e -- at the 

discretion of the Health Resources and Services Administration -- is very narrow. 

And the definition offers no conscience protection to individuals, schools, hospitals, or 

charities that hire or serve people of all faiths in their communities. It is ironic that the 

proponents of the health care law talked about the need to expand access to services but 

the administration issues rules that could force providers to stop seeing patients because to 

do so could violate the core tenants of their religion. 

I am also concerned about the process HHS used to issue the rule. 

This interim final rule was promulgated before the proposed rulemaking and the formal 

comment period were conducted by HHS. 

In issuing the rule, HHS acknowledged that it bypassed the normal rulemaking procedures 

in order to expedite the availability of preventive services to college students beginning the 

school year in August. 

HHS argued that there would be a year's delay in the receipt of the new benefit if the public 

comment period delayed the issuance of HRSA gUidance for over a month. 

I believe that on such a sensitive issue there should have been a formal comment period, so 

that all sides could weigh in on the issue, and HHS could benefit from a variety of views. 

When the health care law was being debated last Congress, the proponents adamantly 

refuted claims that this would be a federal government takeover of our health care system. 

Now, we have the federal Department of Health and Human Services forcing every single 

person in this country to pay for services that they may morally oppose. Groups who have 

for centuries cared for the sick and poor will now be forced to violate their religious beliefs if 

they want to continue to serve their communities. Whether one supports or opposes the 

health care law, we should universally support the notion that the federal government 

should be prohibited from taking coercive actions to force people to abandon their religious 

principles. 

I look forward to hearing from our witnesses and thank them for being here today, 

### 
4 

OPENING STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. GINGREY. Well, I thank the chairman for yielding to me. 

And absolutely the point that he is making in regard to conscience clause, surely, no matter how one may feel about Patient 

Protection and Affordable Care Act that was passed in March of 

2010, whether you are strongly for it, as most Democrats on the 

committee were and strongly opposed to it, as most Republicans on 

our committee were, it seems to me that we should agree that conscience clauses should be protected. 

Each year, one in six patients in the United States are cared for 

in a Catholic hospital, and approximately 725,000 individuals work 

in Catholic hospitals. These hospitals take all who are in need; it 

doesn’t matter their religious background or their ability to pay. 

Come one, come all. But now, Obamacare would actually require 

with the rulemaking Catholic hospitals to primarily serve persons 

who share its religious beliefs or force them to provide benefits like 

abortion drugs to employees that contradict their faith. 

Let me rephrase. The White House is telling Catholic hospitals 

to deny care for those of other faiths or be forced as employers to 

provide coverage for services that they object to on religious and 

moral grounds. Why must President Obama insist that the price 

for healthcare reform be giving up the civil liberties through an individual mandate and the religious liberties that our Founding Fathers guaranteed us under the Constitution. This Congress can do 

better than that. Obamacare can do better than that. 

And I thank the chairman for yielding and I yield back. 

Mr. PITTS. The Chair thanks the gentleman and now recognizes 

the ranking member of the Subcommittee on Health, Mr. Pallone, 

for 5 minutes for an opening statement. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Mr. Chairman. 

Today’s hearing will focus on the implementation of the Affordable Care Act’s prohibition of cost-sharing for preventive health 

services, which will include prescription birth control methods. The 

rule released by the Department of Health and Human Services 

would permit certain religious employers to opt out of the requirement of providing contraception. But unfortunately, this is more 

than an examination of HHS’s rule and whether or not it protects 

conscience rights. It is simply the latest in a series of attacks this 

year on the healthcare reform and women’s health. 

The Federal health reform law represents unprecedented efforts 

to improve women’s health and women’s access to comprehensive 

healthcare. In fact, women will gain the most from healthcare reform. First, we must not forget that the ACA makes health insurance a reality for 19 million women in this country who were uninsured. 

In addition, it seeks to protect women from many insurance 

abuses. In the individual insurance market, women were being denied coverage for such preexisting conditions as pregnancy, having 

had a C-section, or in some cases, breast cancer. The ACA outlaws 

5 

such a practice. Women were also often being charged substantially 

higher premiums than men for the same healthcare coverage, and 

the ACA outlaws these gender-rating practices. 

In many cases, women and children with insurance had not been 

receiving key preventive care from mammograms to well baby and 

well childcare visits to family planning services such as birth control because they could not afford the copays. Now, the Affordable 

Care Act is making groundbreaking strides in care for women by 

eliminating these copays and deductibles for preventive services. 

The new preventative coverage rules announced by HHS remove 

significant financial obstacles for women seeking preventive reproductive healthcare. These provisions ensure that a woman has access to all preventative services, regardless of who her employer is. 

And this is critical because it is well known that almost all 

women—99 percent in fact, including religious devotees—will use 

contraception at some point during their reproductive lives. Meanwhile, 3 recent studies have found that lack of insurance is significantly associated with reduced use of prescription contraceptives. 

But I absolutely support an individual’s right to express their religious convictions. Today’s hearing has nothing to do with religious 

rights and conscience protections. In my opinion, this hearing is 

about women’s access to comprehensive healthcare coverage. And 

whether my colleagues admit it or not, their attempts here today 

are meant to turn back the clock on the great strides the Affordable Care Act has and will continue to make for women’s health. 

We can’t continue to allow obstacles to prevent us from insuring 

the affordability of family planning service for millions of women. 

I would now like to yield 2 minutes from the time I have left, 

Mr. Chairman, to the gentlewoman from Illinois, Ms. Schakowsky. 

OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Ms. SCHAKOWSKY. Thank you for yielding. 

The attention this committee has focused on and continues to 

focus on the private lives of women makes it clear that one of the 

goals of the majority is to end access not just to abortions but to 

family planning. I fought for and will continue to fight for the 

guidelines adopted by the administration. 

After an exhaustive and thorough scientific review by the Institutes of Medicine to ensure insurance coverage of preventive services for women, it is no secret that substantial public health benefits and cost savings emerge when preventive services, including 

family planning, are accessible and affordable. 

As patients, caregivers, and as workers who still earn less than 

men, women have a particular stake in ensuring insurance coverage of prescription contraceptives and other preventive services. 

The new guidelines on insurance coverage of preventive services for 

women should apply to all women, regardless of where they work. 

Allowing employers to exempt themselves in providing prescription contraceptives for their employees is counterproductive, unfair, 

and paternalistic. Why should the conscience of an employer trump 

a woman’s conscience? Why should an employer decide for a 

woman whether she can access the healthcare services that she 

6 

and her doctor decide are necessary? Why are we talking about allowing some employers to put up a barrier to access at a time when 

woman are struggling to afford and access healthcare? 

It never used to be that family planning was considered a partisan issue and it never used to be that family planning was equated with abortion. My, how things have changed. Today, the full 

continuum of reproductive healthcare is under assault. Believe me, 

these conversations are heard far and wide among women out in 

the public, women of all ages and races and parties, political parties, who understand that these kinds of assaults on women’s right 

to make a choice about a lot of things, including contraceptive care, 

and men, too, who want to be able to plan their families. Unacceptable. 

I yield back. 

Mr. PITTS. The Chair thanks the gentlelady and now recognizes 

the vice chair of the Subcommittee on Health, Dr. Burgess, for 5 

minutes. 

OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. BURGESS. I thank the chairman for the recognition. And once 

again, we are here learning that those who are driving the regulatory train are in fact making the practice of medicine more difficult through their lack of thought. And we are left with consequences. The decision by Health and Human Services to issue an 

interim final rule, while that sounds like arcane Washington-speak, 

what that means is that the transparency and accountability of the 

normal Federal rulemaking process has now been circumvented, 

and as a consequence, we have got a rule being put forward that 

now has the force of law as if it were legislation passed by Congress and signed by the President. 

Now, we have got a rule that has the force of law that is unworkable, yes, for faith-based facilities but also was going to have dramatic cost implications across the board for all Americans. A good 

thing or bad thing, problem is we don’t know because we never had 

the opportunity to explore the possibilities. 

So the administration now has singlehandedly rendered faithbased facilities fearful of their ability to continue to serve their patients. The lack of consideration for these organizations has manifested in an extremely narrow and in fact an unworkable exemption. 

The interim final rule further expands the power and reach of 

the Federal Government into the realm of private health insurance 

without regard for conscience rights to be sure, but also without regard to the bill that must be footed by the taxpayer. The requirement that all, underscore ‘‘all,’’ preventive FDA-approved contraceptives must be offered at no copay to all women was never examined for its cost or its practical implications. This policy considers 

both generic and brand name contraceptives the same, so how in 

the world do we expect there to be any price sensitivity in the marketplace if we have simply removed that obligation from the marketplace itself? 

The interim final rule does violate the conscience protections 

many healthcare providers rely upon and ultimately leads to diVerDate Aug 31 2005 14:55 Dec 10, 2012 Jkt 037690 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 F:\112-10~3\112-10~1 WAYNE
7 

minished access of care—as Dr. Gingrey so eloquently pointed 

out—and also importantly, a rising monthly premium for all Americans. 

I yield now to the gentlelady from Tennessee. 

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mrs. BLACKBURN. Thank you, Mr. Burgess. 

And I want to welcome all of our witnesses. We are so pleased 

that you have taken the time to be here with us today. 

President Obama came before Congress and made a statement, 

‘‘under our plan, no Federal dollars will be used to fund abortions 

and Federal conscience laws will remain in place.’’ Then, at Notre 

Dame he said, ‘‘let us honor the conscience of those who disagree 

with abortion.’’ But the truth is this administration, by its actions, 

calls abortion essential care. Obamacare discriminates against hospitals, insurance plans, and healthcare professionals who don’t 

want to violate what they know in their hearts to be true. 

HHS has published this new rule—we have all spoken about 

this—to force America’s doctors and nurses to do the things that 

otherwise they would not do. Maybe it should be called coercion 

backed by the taxpayer dollars and that is a little bit of a poisonous 

medicine to swallow. It is unconstitutional and unethical and 

cheapens the civil rights of our medical professionals. 

Smuggling abortion into PPACA was destructive and it is another big reason why I think we need to repeal Obamacare. 

With that, I would like to yield the balance of the time to Dr. 

Murphy. 

OPENING STATEMENT OF HON. TIM MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA 

Mr. MURPHY. Thank you. And thank you, Chairman Pitts. 

Since this rule was released, I have heard an outpouring of concern not only from religious leaders like Bishop David Zubik of the 

Diocese of Pittsburgh, but from over 1,000 individual constituents 

and a range of employers from the CEOs of multibillion dollar companies to small business owners. I have a hard time explaining to 

them that the Federal Government is forcing them to choose between their faith and providing health insurance to their employees. 

This mandate stands in stark contrast to the stated purpose of 

healthcare reform expanding access to healthcare. Instead, this 

mandate will strip countless Americans of their health insurance 

calling into question President Obama’s promise that if you like 

your health insurance you can keep it. To that I would add a question. If you like your religion, can you keep it? 

Almost exactly a month ago, I sent a letter to Secretary Sebelius 

expressing my concern and that of the thousands I represent in 

Congress with the blatant disregard for the religious and moral beliefs of millions of Americans displayed in this new ‘‘preventative 

services’’ mandate. I am still waiting for Secretary Sebelius to respond. 

8 

Mr. Chairman, toward that end, I ask for unanimous consent 

that my letter to Secretary Sebelius be included in the official 

record. And with that, I yield back. 

Mr. PITTS. Without objection, so ordered. 

[The information follows:] 

9 


75050.002

TIM MURPHY llJn.4 DISTRICT, PENNSYlVANIA 

COMMITTEE ON ENERGY AND COMMERCC 

HEALTH 

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CO~CI1AIR. STEEL CAUCUS 

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October 4.2011 

Secretary Kathleen Sebelius 

Department Of Health And Human Services 

200 Independence Avenue, S,W, 

Washington, D,C, 20201 

Dear Secretary Sebelius: 

On behalf of employers and religious institutions in my district, I want to share with you my 

objection to the disregard for religious and moral beliefs displayed by the Department of Health 

and Human Services in the new preventive services mandate created under the Patient Protection 

and Affordable Care Actl. The new rule will require all health insurance plans [0 offer 

contraceptives and abortifacients as free preventive care. While the rule attempts to provide 

exceptions for 'religious employers', the Department's definition is far too narrow. [ urge you to 

immediately abandon this mandate and rewrite the conscience exemption so that the employers 

with deeply-held religious beliefs are not forced to violate their faith in order to comply with the 

law, 

Our nation allows individuals of all faiths to practice their beliefs. and this new mandate will 

force many employers like religious hospitals and universities to violate their moral values and 

convictions in order to follow the law, To qualify for this exemption Catholic hospitals would be 

required to treat only patients of the same religious beliefs, and private universities may only hire 

employees that share the same faith. 

As the Mos[ Reverend Donald Zubik, who serves as the Bishop of the Diocese of Pittsburgh, 

succinctly put it: "This mandate would apply in virtually every instance where the Catholic 

Church serves as an employer, requiring the Catholic Church [0 violate its own tenets by forcing 

Ca[holic entities [0 provide contraceptive and sterilization coverage," 

While arguing that PPACA will expand access to heolthcare. the Depanment has proposed a rule 

that will in fact strip it away from thousands of employees across the country, By choosing 10 

stand behind fundamental beliefs and expressing one of America's dearest freedoms, schools, 

hospitals, charities, and care homes will be conducting an illegal act. and will be forced to pay a 

large penal[y that will all but require them to let go many employees or drop healthcare coverage 

altogether. This is unacceptable, 

I Interim rule (76 Fed, Reg. 46621) published on August 3. 20 II by the Departmen[ of Health and Human 

Services in interpretation of section 2713(a)(4) of PL 111-148 

rJ 322 CANNON Houst.. OFFICE BUILDING 

WJ\S.~lfllGTON, DC 20515 

1202122$-2301 

f,..)(: (202) 22!)-1B44 

o 504 W>S"'NG rON Ro>o 

PITfSOUI'lGH. PA 15228 

1.,21344-5583 

FAX: 1412)429-,5092 

[J 20i10 FA£Cf:FIi!CICSON PL,II.CE 

RQuTt: laG 

GRffN5I!UPG. PA 15601 

(72416S()-7312 

FAx: jJ14j a~0-:nl5 
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75050.003

Further, implementation of this rule runs cOUDter to the President's oft-repeated claim if you like 

"U you like your health care plan, you can keep your health care plan.,,2 With this latest 

development, it is clear that simply will not be the case. 

Therefore, I ask that the Department discard the preventive services mandate. The Department 

recognized the need to create an exemption for religious institutions, and 1 ask that the rule be 

redr.afted to ensure the rights it aims to defend are fully protected. 

Sincerely. 

Tim 

~ Murphy 

Member of Congress 

2 "Why We Need Health Care Refonn" New York Times oped. President Obama. 15 August 2009. 

http://www.nytimes.coml2009f08fl6iopinionf!60bama.html?pagewanted;all 
11 

Mr. PITTS. The Chair recognizes the ranking member of the full 

committee, Mr. Waxman, for 5 minutes for an opening statement. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Mr. Chairman, this is not a hearing about abortion. This is not a hearing about whether people can adhere to 

their religious beliefs and follow their own individual consciences. 

This is a hearing about whether the Republicans can have the government intrude to the point where people who buy health insurance could be denied insurance coverage for the preventive service 

of family planning. Preventing conception is what family planning 

is all about, and it is a legitimate medical service. In fact, the Institute of Medicine made recommendations to the Department for 

what would be covered under preventive services, and they recommended that this be a covered preventive service. 

So the question is, if somebody doesn’t want to provide contraception because it violates their religion or their conscience, would 

they be required to? Absolutely not. The question then comes down 

to, what is the scope of the exception that church-provided insurance need not cover family planning? Well, I don’t know why that 

should be even an exception. I disagree with the administration in 

providing that exception. But the Republicans would like to, first 

of all, extend that exception to all church-related groups whether 

it means that the people who are covered are of the same faith or 

not. But we are going to hear from a witness who would like to 

have no insurance coverage for contraceptives services because it 

violates her point of view. 

Now, we hear a lot from the other side of the aisle about government intrusion in our private lives. There can be no intrusion more 

significant than government telling people they cannot get contraception, they cannot get insurance to cover contraception, it should 

not be a provided service. Well, that is part of what the Republican 

agenda appears to be, but it is much more than that because what 

we have is a hearing today that purports to be about the conscience 

protection, but it is another attempt by the Republicans to undermine and undo the Affordable Care Act’s provisions related to 

women’s health. And no single piece of legislation in recent memory has done more to advance women’s health and women’s access 

to health services than the Affordable Care Act. 

It provides coverage for millions of Americans including 19.1 million women who are uninsured. It makes health insurance coverage 

more affordable through premium assistance. It stops gender rating. It would no longer be legal to do that where women are 

charged higher premiums than men for the same insurance coverage. It will be illegal for insurance companies to discriminate 

against women and others on the basis of preexisting conditions, 

which by the way may even include history of breast cancer, pregnancy, or experience of domestic violence. And then the cost-sharing requirements under Medicare have been eliminated for women’s preventive health services such as mammograms and well 

women visits. For new private health insurance coverage that prohibition against cost-sharing extends to breastfeeding counseling, 

12 

screening, and counseling for domestic violence. And it would include FDA-approved contraceptives in addition to mammograms 

and well women checkups. 

Now, the Republicans would like to take all this away, not just 

the access to contraceptive services. They would like to repeal the 

Affordable Care Act. And if they succeed, newly established health 

benefits and health coverage for women would disappear. And what 

would they do to replace this? Nothing. They would leave the status quo in place. 

Now, let me be clear. I support policies that recognize and protect the right of individuals to express and act on their religious 

and moral convictions. If you have moral convictions, you can keep 

them, just don’t try to impose them on everybody else. We cannot 

turn the clock back. We shouldn’t let the Republicans confuse the 

issue. 

Deny health insurance coverage that includes contraceptive services to millions of American women, that is wrong. Women who 

don’t want that service don’t have to access it if it violates their 

conscience. A doctor does not have to provide it if it violates his or 

her conscience. But tell me less about the conscience of the employer or the insurance company and why that should take precedence over all the people who are to be covered that do not share 

that particular point of view. The Department’s position on insurance coverage for family planning is in keeping with this goal and 

should move forward without delay. 

I am going to yield back my time and express a strong support 

for this preventive service which is now being used widely by people who even are members of a church that in theory and religious 

doctrine disapprove of the service. 

Mr. PITTS. The Chair thanks the gentleman. That concludes the 

opening statements of the members. The Chair has a UC request 

to submit for the record a statement by Congressman Jeff 

Fortenberry; a statement by the Catholic University of America 

president, John Garvey; some letters from the U.S. Conference of 

Catholic Bishops; and a letter from the Family Research Council. 

These have all been provided. Without objection, these will be entered into the record. 

[The information follows:] 

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75050.004

United States Congressman - First District, Nebraska 

JEFF FORTENBERRY 

Statement of Congressman Jeff Fortenberry 

"Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" 

House Energy and Commerce Subcommittee on Health 

November 2,2011 

Chainnan Pitts, I appreciate the opportunity to submit this statement for the 

record, and am grateful for your initiative to hold this important dialogue today for 

the consideration of the American people. 

I am not a doctor, nor do I approach this hearing with clinical expertise or 

experience in the health care industry. I am speaking today as an American, as the 

representative of the First District of Nebraska, as a husband and father of five who 

is deeply concerned about the direction of our public policies, and in particular the 

direction of U.S. health care policy pursuant to the enactment of the health care 

overhaul last year. 

In 2009, I was pleased to hold several Town Hall events on health care, 

including one on August 27 at the People's City Mission in Lincoln, to discuss the 

many concerns my constituents sought to raise about access to quality health 

care. Over the past two years, there has been much debate about improving access 
14 


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to quality care as well as improving health care outcomes for hard-working 

Americans. I support the right type of health care reform that improves outcomes 

while reducing unsustainable costs. It grieves me profoundly that the health care 

law enacted in 20 I 0 represents the flash point of an ideological agenda that in no 

small measure threatens to undermine fundamental liberties that have defined the 

essence of our national character, particularly the foundational liberties of religion 

and conscience. 

In 1809, Thomas Jefferson declared that "[n]o provision in our Constitution 

ought to be dearer to man than that which protects the rights of conscience against 

the enterprises of the civil authority." James Madison also spoke to the primacy of 

conscience in American public life when he stated in one of his amendments to the 

Constitution that "the civil rights of none shall be abridged on account of religious 

belief or worship, nor shall any national religion be established, nor shall the full 

and equal rights of conscience be in any manner, or on any pretext, infringed." 

Madison, the major architect of our Constitution, also declared "conscience is the 

most sacred of all property." The right of conscience is clearly a quintessential 

American tradition. 

Yet conscience rights have come under attack. Two years ago, when 

significant alarms were being raised about the potential for the health care overhaul 

to serve as a vehicle for forced funding of abortion-on-demand, which 72% of 

Americans polled oppose', I began working on the Respect/or Rights 0/ 

Conscience Act. In anticipation of concerns (which have recently been confirmed 

in the series of administrative actions taken by the Department of Health and 

Human Services this year) I introduced the measure on March 17,2011 with my 

colleague Dan Boren. 

H.R. 1179, the Respect/or Rights a/Conscience Act of 2011, sets forth 

findings that illustrate the fundamental nature of the health care liberties my 

colleagues and I are working to defend. It seeks to preclude the broad potential 

for violation of fundamental rights of conscience inherent in new powers granted 

to the federal bureaucracy through the terms of the 2010 health care law, as 

interpreted by the Department of Health and Human Services. 

I Quinnipac University survey of 1,616 registered voters nationwide, December 15·20. 2009, margin of error +/- 2A 

percentage points. 

2 
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The federal government crossed a line with the enactment of the 2010 

health care law by establishing a framework for imposing coverage requirements 

that infringe on the rights of health care providers broadly, including insurers, 

purchasers of insurance, plan sponsors, beneficiaries, and individual or institutional 

health care providers. Unless adequate conscience and associated nondiscrimination protections are enacted, the 2010 health care law effectively bars 

health care stakeholders from retaining existing insurance arrangements consistent 

with their moral and ethical convictions. 

I believe that it is vital for Americans to understand that the Department of 

Health and Human Services is interpreting the new health care law in a manner 

that imposes health care directives and associated conscience concerns that extend 

well beyond the context of abortion. 

While the abortion funding concern remains preeminent, the potential fallout 

from the Administration's approach to health care reform encompasses a much 

broader array of conscience concerns related to drugs and procedures that have 

always been considered elective in nature, and offer no prospect of helping to 

mitigate chronic diseases such as cancer, heart disease, and stroke - that consume 

75 cents of every public health care dollar spent in the United States. 

Specifically, on February 18,20 11, the Obama Administration's 

Department of Health and Human Services rescinded key portions of a regulation 

issued in 2009 to protect the conscience rights of health care 

providers. Subsequently, in July 2011, the Institute of Medicine (10M) issued a 

recommendation to the Department of Health and Human Services to mandate 

coverage of certain items and services considered by 10M to qualify under the 

category of preventive care. 

On August 3, 2011, the Department of Health and Human Services issued 

guidelines t10wing from the 10M recommendations that require mandatory 

coverage of drugs and procedures at no cost to the recipient and fully funded by 

third party enrollees, regardless of their willingness to pay for items and services 

many Americans object to in good conscience. It is also disturbing that that the 

process the Department followed in issuing this mandate short-circuited 

established rulemaking and comment procedures in a rush to expedite availability 

of drugs and procedures that are distinctly unrelated to America's health care 

challenges, over the vigorous objections of Members of Congress, the public, and a 

wide range of health care providers, including small businesses seeking to provide 

adequate health care benefits for their employees. 

3 
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Ironically, the Department's interpretation of the Mikulski Amendment, 

from which it purports to derive justification for assuming unto itself vast and 

arbitrary powers which rightfully belong to Americans concerning their private 

health care decisions, reaches significantly beyond that amendment's stated intent 

to ensure "that women get the kind of preventive screenings and treatments they 

may need to prevent diseases particular to women such as breast cancer and 

cervical cancer.,,2 

I also find it peculiar that the Recommendations of the U.S. Preventive 

Services Task Force for 2010-20 11, set forth in The Guide to Clinical Preventive 

Services, make no mention of the drugs and procedures covered in the HHS 

directive. 

Moreover, the Department's guidelines incorporate such a narrowly 

construed conscience exception for religious providers as to ensure that the vast 

majority of faith-based health care providers in the United States, including faithbased plans and employers such as parochial schools and universities, will be 

forced to either violate their deeply-held beliefs, drop health care coverage, or 

cease providing health care services to the general public unless they serve or 

employ persons primarily of their own faith. Such a scenario is discriminatory and 

insulting. To clarify potential misconceptions about the application of conscience 

rights to institutional health care providers, it is understood that 'providers' in this 

context includes entities managed by individuals working together to uphold 

fundamental moral and ethical convictions in the exercise of their beneficent 

mission. 

For the first time in the history of the U.S. health care system, which owes 

its success in large measure to the faith-based institutions that continue to serve as 

a compassionate backstop for the health care needs of our most vulnerable and 

underserved popUlations, ill-advised public policies threaten to result in the 

following adverse consequences: 1) ballooning health care costs, by virtue of the 

extensive scope of mandated coverage; 2) absent the enactment of adequate 

conscience protections, the forced violation of deeply held beliefs of health care 

providers, who will be required by the strong arm of government to choose 

between their convictions and livelihood; 3) resulting in reduced access to high 

quality care for vulnerable populations that have traditionally relied on charitable 

institutions for health care. 

2 Congressional Record, December 3, 2009, S12269. 

4 
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75050.008

I find it is deeply troubling that this country, which derived its unique 

character and strength from inalienable rights, including freedom of conscience, 

whether exercised in a religious context or otherwise, is increasingly facing the 

steady erosion of the right of health care providers to exercise deeply held moral 

and ethical judgments. Americans deserve a health care system that respects their 

core values and fundamental liberties to negotiate private health care decisions and 

treatment options, as has always been the case prior to the passage of the new 

health care law. 

5 
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75050.009

United States House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Health 

"Do New Health Law Mandates Threaten 

Conscience 

Rights and Access to Care?" 

November 2,2011 

Testimony of 

John H. Garvey 

President 

The Catholic University of America 
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75050.010

Federal regulations should not place The Catholic University of America or any university in 

the position of having to choosc between the exercisc of its religious principles and compliance with an 

over-reaching government policy. The new HHS women's health mandate puts us in exactly that 

position. It requires us to include, in our health insurance plans for students and employees, surgical 

sterilizations and all FDA-approved contraceptives. This includes prescription drugs (like Ella) that cause 

early term abortions. We might avoid this obligation by refusing to offer health insurance - an option our 

Catholic faith disdains. In three years we won't even have that option, so far as our employecs are 

concerned. Under the Affordable Health Care Act we will have to pay a $2000 per employce if we do not 

offer health insurance, and our insurance will have to cover mandated services. 

The Catholic University of America pays about 75% of its employees' health insurance costs. 

Though it does not subsidize its student plan in that way, it does negotiate the terms of the plan and 

collect payment from the students. By providing, operating, and subsidizing health plans that include 

sterilization, contraception, and early-tenn abortions, Catholic University cooperates in activities it views 

as intrinsically evil. It is a widely accepted moral principle that helping someone else to do wrong is 

almost as bad as doing wrong oneself. 

Forcing The Catholic University of America to comply with this law is wrong for another reason 

as well. It is our mission, as a Catholic university, to see that our students grow in grace as well as 

wisdom during the time they study here. This law will force us to help our students do things that we 

teach them, in our classes and in ollr sacraments, are sinful ... sometimes gravely so. A proper respect 

It)f religious liberty would warrant an exemption for our university and other institutions like it. 

These regulations are so wide-ranging that they apply to virtually all conventional health plansand to hundreds of Catholic institutions, elementary and secondary schools, hospitals, and social service 

organizations such as Catholic Charities. The rules purport to offer an exemption for "religious 

employers," but the term is defined in a way that excludes Catholic univcrsities and most other Catholic 
20 


75050.011

institutions. The rules say: "Thc inculcation of religious values [must be] the purposc of the 

organization" (cmphasis added). That is too narrow to include Catholic univcrsities, which obscrve 

norms of academic freedom and teach chemical thelmodynamics, aerospace engineering, musical theater, 

Mandarin Chinese and the Victorian novel along with theology. It's too narrow to include SI. Ann's 

Infant & Maternity Home in Hyattsville, MD, which provides care to abused and neglected children and 

to pregnant adolescents who need help. Nor does it encompass the Jeanne Jugan Residence for the 

elderly, run by the Little Sisters of the Poor across thc street from our campus. 

The rules disqualify any organization that does not also employ and serve "primarily persons who 

share the religious tenets of the organization." This would rcquire Catholic hospitals and Catholic 

Charities to abandon their commitment to serve poor people of all faiths. It would disqualify Catholic 

middle schools such as the Nativity Miguel Network, which educates boys of all faiths tuition-free. And 

it would exclude any Catholic college or university whose faculty and student body are not majority 

Catholic. 

Even if an organization meets all these criteria, it is still not considered a "religious employer" 

unless it is one of the few non profits that are excused under the tax law from filing an IRS Form 990. 

This stipulation limits the exemption to churchcs, thcir integrated auxiliaries, and religious orders. It is 

not a serious or meaningful attempt to reconcile such a Draconian mandate with the religious liberties that 

citizens and institutions should enjoy. 

I understand, as do the leaders of other Catholic organizations, that not all citizens share the views 

that the Catholic Church holds about contraception and sterilization. It is particularly sad that not all 

Americans share our conviction that abortion is gravely wrong, even in the earliest stagcs of pregnancy. 

But in objecting to these regulations, our university only asks for respect for the religious beliefs we try to 

impali to our students. In offering a requirement, not an option, the government forces employers to 

choose not how and what procedures to cover, but whether to provide insurance at all. And in 2014 even 

2 
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75050.012

that option will be foreclosed for employees, It is distressing that IIHS should ignore our nation's 

historical commitment to religious liberty in deciding what kinds of services to mandate, When the 

Affordable Health Care Act was under consideration in Congress, the administration promised that 

Americans who like their current health care coverage could keep it after we enacted the new reform, 

Employers, employees, and issuers who have moral and religious objections to sterilization, 

contraception, and abortion are now free to have health care coverage that excludes these practices, If the 

appeal to religious liberty is not reason enough to provide a liberal exemption, HHS should consider its 

obligation to keep the President's promises, 

It does not take a college education to see the hypocrisy in offering to pay for the very services 

we condemn in our theology classes and seek forgiveness for in our sacraments, The federal government 

should not have the power to force Catholic institutions into such a collective violation of our own 

conscientious beliefs. HHS would do well to bear in mind the words of Justice Robert Jackson, writing 

almost 70 years ago about a law that forced Jehovah's Witnesses to violate their religious beliefs: "If there 

is any fixed star in our constitutional constellation, it is that no onicial, high or petty, can prescribe what 

shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess 

by word or act their faith therein," 

3 
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75050.013

Secretariat of Pro-Lift' Acti\'itic;. 32 I I FOURTH STREET NE ~ WASHINGTON DC 2.0017-1194 

202-541-3070 ~ FAX 202-541-3054 ~ EMAIL PROLlFE@USCCB.ORG ~ WEB WWW.L'SCC8.0RG/PROLlFE 

November 1,2011 

The Honorable Joseph Pitts 

Chairman, Subcommittee on Health 

House Energy and Commerce Committee 

Washington, D.C. 20515 

Dear Mr. Chairman: 

On behalf of the United States Conference of Catholic Bishops, I want to thank 

you for holding a hearing on November 2 titled, "Do New Health Law Mandates 

Threaten Conscience Rights and Access to Care?" We would like to ask that you accept 

this letter and its attachments as our written submission for this hearing. 

rhis issue has been a matter of grave concern to the Catholic bishops of the 

United States throughout Congress's debate on health care reform. We have long 

supported the goal of univcrsal access to health care, and encouraged the 111 th Congress 

to advance this goal through morally responsible health care reform. At the same time, 

we consistently stated that such refonn must not become a vehicle for abandoning or 

weakening longstanding federal policies that respect unborn human life and rights of 

conscience. Days before final votes on the health care reform bill, Cardinal Francis 

George as President of the USCCB reaffirmed what we had said many times over the 

previous year: "Any final bill, to be fair to all, must retain the accommodation of the 

full range of religious and moral objections in the provision of health insurance and 

services that are contained in current law, for both individuals and institutions" 

(Statcmcnt of March 15,2010). 

The final legislation passed by Congress was flawed in several respects. It fell 

short of universal access, most notably with respect to immigrants. It allowed for federal 

funding of elective abortions, and of health benefits plans that cover such abortions, for 

the first time in decades. It excluded longstanding protections for conscience rights on 

abortion, by failing to apply the annual Hyde/Wt:ldon amendment to the billions of 

dollars newly appropriated by the Act. And it created new open-ended mandates for 

"essential health benefits" and "preventive services" to be included in almost all private 

health plans, without any provision for individuals or institutions that may have a moral 

or religious objection to particular items or procedures. 

This last deficiency in the statute has now been exploited by the Department of 

Health and Human Services to impose a nationwide mandate for coverage of all FDAapproved contraceptive drugs (including at least one abortion drug similar to RU-486), 

sterilization procedures, and education and counseling to promote these to "all women 
23 


75050.014

2 

with reproductive capacity." The HHS rule includes an exemption for "religious 

employers" so naITowly crafted that many religious organizations cannot fulfill any of its 

four requirements, let alone all four. Catholic health care providers, educational 

institutions and social services agencies would have to be listed in the tax code as a 

church or similar naITowly defined entity, make the inculcation of religious doctrine their 

organizational purpose, and largely refuse to hire or serve non-Catholics to be fully 

eligible. It has been said that Jesus and the apostles would not be "religious enough" 

under such a test, as they served and healed people of different religions. Moreover, even 

Catholic institutions that somehow manag.e to meet these tests would not be allowed to 

offer a Catholic health plan to non-employees for example, to students at a Catholic 

college, or to members of the public (even if they are fellow Catholics). 

Here we see immediately how a failure to respect consciencc rights poses a 

serious threat to the goal we share of expanding access to health care. For under the new 

HHS mandate, Catholic organizations committed to their moral and religious teaching 

will have no choice but to stop providing health care and other services to the needy who 

arc not Catholic, or stop providing health coverage to their own employees. This is an 

intolerable dilemma, and either choice will mean reduced access to health care. 

It is especially troubling that this reduction in access to life-saving health care 

would be done in order to maximize the lise of elective drugs and procedures that prevent 

no illness, are used mainly for personal lifestyle reasons, and can pose their own 

significant risks to women's life and health. Even recent findings that hormonal 

contraceptives can heighten women's risk of contracting and transmitting the AIDS virus 

has not made any difference to this campaign - although the "preventive services" 

package of benefits is, among other things, supposedly aimed at preventing AIDS. Is the 

drive to maximize contraceptive coverage, even among those who do not want it, such an 

urgent national priority that it transcends concerns about religious liberty, our nation'S 

"First Freedom," as well as concerns about women's health and about acccss to basic 

health care for men and women alike? 

In this new rule, we have moved very far from the longstanding consensus on 

rcspect for rights of conscience that has prevailed in the federal government for decades. 

To cite just one instance, when Congress decided to require contraceptive coverage in the 

Federal Employees Health Benefits Program in 1999, there was also a strong bipartisan 

consensus that any health plan would be exempt if its carrier simply objected on the basis 

ofrc1igious belief - and that individual health care providers in all plans would be 

protected from being required to violate their religious beliefs or moral convictions. This 

policy remains in place to this day. So for the past twelve years, a Catholic health system 

could offer a health plan without contraceptive coverage to anyone who wanted it, 

including federal employees - yet now it will be prohibited from offering such a plan to 

anyone, even irs own employees. 

This is why congressional approval of the Respect for Rights of Conscience Act 

(RR. l179/S. 1467) is urgently needed. This legislation would not affect any state or 

tederal obligation to provide health coverage, except to provide that new nationwide 
24 


75050.015

mandates under the new health care reform law will not forbid the issuers, sponsors, and 

benetlciaries of private health plans to negotiate health coverage that is consistent with 

their moral and religious convictions. Such accommodations have been the norm in 

fcderallaw for many years, and it is long overdue that they be permitted by the health 

care reform law as well. 

3 

As attachments to this letter, I have provided additional materials: A full-page ad 

appearing this week in Politico, Roll Cali, The Hill, and CQ Today signed by the 

leadership of 22 Catholic organizations concerned about the "preventive services" 

mandate; my September 7 letter endorsing the Respect for Rights of Conscience Act; and 

an August 31 press release about our formal comment letter to HHS objecting to this 

mandate. The comment letter itself, and other materials on this issue, are available at 

\\'\\W. usccb.on,,/conscicncc. 

Thank you again for addressing this situation in which religious liberty, freedom 

of conscience for health care providers, and access to health care for all Americans arc 

very much at stake, 

Sincerely, 

~7)~tti~ 

Cardinal Daniel N. DiNardo 

Chairman, Committee on Pro-Life Activities 

United States Conference of Catholic Bishops 
25 


75050.016

Support access to heal 

Protect conscience rights. 

clare? 

Catholic Organizations Respond to HHS "Preventive Services" Mandate 

\;\ie, ~he undersigned, strongly support access. to llfe·affmning health cart: for dU, and the ilbility of secular and relig!ous groups 

and mdiv!duals to provide and receive such care. That is why we have raised objE'ctions to a rule Issued by thE' U.S. Department 

of Health and Human Services forcing almost all private health plans to cover sterilization procedures and contraceptive dr'Jgs, 

Including drugs: that may cause an early abortion. 

As wntten, the rule will force Catholic organizations that playa vital role in providing health care and other needed services either 

to violate their conscience or severely curtail those services. This would harm both religious freedom and access to health care. 

The HHS mandate puts many faith-based organizations and indlviduals In an untenable position. But it also harms society as a 

whole by Jndermining a long American tradition of respect fOf religiot1S liberty and freedom of conscience. In a pluralistic SDcety, 

our health care system should respect the religious and ethical convictions of aU. We ask Congress, the Administration, and our 

fellow Americans to acknowledge this trutn and work with us to reform the law accordingly 

fiobl'rt 8, Aguirre John Garv~y,JO 

P«~s,d!!<1 t Pt(>~'cll:"nt 

C.<l\hoil( ASSO(liHlOnofliitino Leader~ The Cdtho!.c U!'!Ve'~'ty of ArT'ef!(;a 

Carl 1\. Anderwn Sheila Gilb",rt 

F. O~Ka,lo:5 Bliltkmon, OblSB 

Chri5tii!ln .. Chagnon 

i<"ltfrrliltlonill R~gen, 

DilU'lIH("sof!s"b"lla 

WsUiamJ,(Ql( 

PreslGe.nllCEO 

AIIi,,('(e 01 (.Hho/it Health Care 

Mi{tla~1 Gam!Jan.5tiNI~, PhD 

P'e$lden!fCEO 

Assooatlor; QfC<ltroilc Colle,?<'s 

Ul(lU(VVef'iI!leS 

John A<t. H .... s, PhD, STL 

PreSident 

K{!nH"tkeU 

Jan ft Hemstad, MD 

C<lthol!<:: Medical ASSOc13t,on 

(tHlryl A. Hettmlln, PhD, RN 

Pr'i'sidert 

Nat'Of),li AS~OClatl(Hl 01 CatholiC Nurses 

RE'v.JohnJenktns,CSC 

UnlVE'rSity of Notre Dilme 

PattyJohnum 

p,<,!,,,jerH 

N,w(naIC()un((lofCiltholI(Women 

J"l1lesG.lind:5ay 

FXl'(ut!Vt'Oi,€,(1m 

C~t1ohcVofunteerNetwork 

St .. phen L. MiillocMk, JD 

Cheir 

Karen M. Rutau. EdO 

P(!.'sfdellt 

National Catholic Eduulilonal 

AS50(la!lOn 

GeralynC.Shelvi" 

Rl'v. limy SnydO!r 

Pre5,dent 

Catroi«Char'UesU$A 

Juannl'Tol1lassi 

Nillron~l Ri'qent 

CMhoil( Oaugl11!.'f5 of the A'1'1e1l(3~ 

The M05tRe~, JO$E Gamel 

Arcl'h ,"0[1 of l"~ I\"gl'!"~ 

Chillrn,1r1 

Migldllonand~efu9('{'Sf'1V,(es 

The Most Rev, Timothy Dol,," 

Ar[rb'shopoiNr;>lII\'crk 

f>resdent 

Un'ted$tatesCo"ferf'nceof 

Catho!i{ BiShops 
26 


75050.017

202·541-3070 • rt-x 202·'541-3054 • FMA.!t (''"'If;' IrrC"I'tlSfCH ()RG .... .':-tl v:,'. I', U5C{ 1l.f;R::/PW)( In 

September 7, 2011 

Dear Member of Congress: 

While I have written previously to encourage your support for the Respect for Rights of 

Conscience Act (H.R. 1179, S. 1467), recent events make this request more urgent. 

In an interim final rule published August 3, the Department of Health and Human 

Services (HHS) has established a list of "preventive services for women" to be required in 

almost all private health plans nationwide, under the authority of the Patient Protection and 

Affordable Care Act (PPACA). Tragically, HHS missed its opportunity to focus on prevention 

of diseases and disabling conditions that truly pose serious risks to women's lives. Instead it 

decided to include mandatory coverage for: surgical sterilization; all prescription contraceptives 

approved by the FDA, including drugs like Ella (ulipristal) that can cause abortions in the early 

weeks of pregnancy; and "education and counseling" to promote these to "all women of 

reprocJuctive capacity."' 

The new HHS mandate underscores a major deficiency in PPACA - it lacks a conscience 

clause to prevent the Act itself from being used to suppress the rights and freedoms of those who 

may have moral or religious objections to specific procedures. This omission is especially 

glaring in light of the fact that the Act docs accommodate the religious beliefs of those who 

object to participation in government-run benefits programs altogether. those who wish to 

address illness solely by prayer, and those on Indian reservations who are committed to 

traditional tribal practices of healing. 

As you may know, the nation's largest abortion provider, Planned Parenthood, actively 

campaigned [or the mandate now issued by HlIS, and supports mandated coverage of chemical 

as well as surgical abortion. Planned Parenthood and other pro-abortion groups hope that once 

there is a national mandate for "prevention" of pregnancy as if it were a disease inimical to 

women's well-being, this will build their case for promoting abortion as the "cure."' 

Last fall the United States Conference of Catholic Bishops presented a detailed case 

against a nationwide contraceptive mandate on several grounds. For example, there are solid 

reasons to doubt claims that expanded contraceptive programs reduce abortions, or that 

prescription contraceptives enhance health for women (lillPjio~·tllsccb.or!.!!llf!Clprcventi\e.pdt). 

In this letter I wish to focus on the threat posed by such a mandate to rights of conscience and 

religious freedom, as Congress has protected these rights in the past and needs to do so again. 

This spring, to address the serious flaw in PPACA regarding lack of conscience rights, 

Reps. leffFortenberry (R-NE) and Dan Boren (D-OK) introduced the Respect for Rights of 

Conscience Act (H.R. J 179). This legislation would change no current statc or federal mandate 

for health coverage, but simply prevent any new mandates under PPACA such as HHS's new 

set of "preventive services for women" -- from being used to disregard the freedom of 

conscience that Americans now enjoy. This woulcJ seem to be an absolutely essential element of 
27 


75050.018

2 

any promise lhat if Americans like the health plan they have now, they may retain it. I applaud 

the August 2 introduction of a Senatc version of this legislation (S. 1467) by Senators Roy Blunt 

(R-MO). Marco Rubio (R-FL) and Kelly Ayotte (R-NH), and 1 urge members of both parties to 

add their names as co-sponsors to these urgently needed bills. 

Respect for rights of conscience in health care has been a matter of strong bipartisan 

conscnsus for almost four decades. Under the Church amendment of 1973, those taking part in a 

variety of federal health programs may not be discriminated against because they have moral or 

religious objections to abortion or sterilization, and in some circumstances to any other health 

service. The Federal Employees Health Benefits Program exempts religiously affiliated health 

plans from any contraceptive mandate, and protects the conscience rights of health professionals 

in secular plans. The major federal legislation for combating AIDS in developing nations 

ensures the full pmticipation of organizations that have a moral or religious objection to 

particular methods of AIDS prevention. This consensus is reflected in a variety of other federal 

laws as well (h!!rJj~~Jsccb.org/rl"OlifeLiY;lles/ahoI1ion!cnnavQ!iJlQl). 

HHS's ncw mandate for contraception/sterilization coverage, by contrast, includes an 

incredibly narrow exemption for "religious employers" that protects almost no one For 

example. a Catholic institution serving the poor and needy would have to fire its non-Catholic 

staff, refuse life-affirming care to non-Catholic people in need, and devote itself instead to "the 

inculcation of religious values" to qualify for the exemption. Individuals, insurers, and the 

sponsors of non-employee health plans (e.g., student health plans in Catholic schools) would 

have no exemption at all. This effort to corral religion exclusively into the sanctuaries of houses 

of worship betrays a complete ignorance of the role of religion in American life, and of 

Congress's long tradition offar more helpful laws on religious freedom. 

HHS's new list of mandated benefits makes it especially urgent for Congress to hring 

PPACA into line with the federal govemment's long legal tradition of respect for the rights of 

conscience. Those who sponsor, purchase and issue health plans should not be forced to violate 

their deeply held moral and religious convictions in order to take part in the health care system or 

provide for the needs of their families, their employees or those most in need. To force such an 

unacceptable choice would be as much a threat to universal access to health care as it is to 

freedom of conscience. 

Therefore I urge you to support and co-sponsor the Respect for Rights of Conscience Act, 

to help preserve respect in federal law for the freedom to follow the dictates of one's conscience. 

Sincerely, 

~7)~1fi~ 

Cardinal Daniel N. DiNardo 

Archbishop of Galveston-Houston 

Chairman, Committee on Pro-Life Activities 

United States Conference of Catholic Bishops 
28 


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USCCB News:USCCB Urges Rescission ofHHS Contraceptive Mandate, Criticizes 'Ine.. Page I 0[2 

LNlll 

CATHOLIC B (S HOPS 

lJSCCB URGES RESCISSION OF HHS COJ\IRACEPTIYE 

MANDATE, CRITICIZES 'INEXPLICABLY NARROW' DEFINITION 

OF RELIGIOUS FREEDOM 

August 31, 2011 

WASHINGTON-The general counsel of the US Conference of Catholic Bishops (USCCB) 

called on the Department of Health and Human Services (HHS) to rescind its mandate 

forcing private insurance plans to cover contraception-including abortifacients-and 

sterilization, calling the mandate "unprecedented in federal law and more radical than any 

state contraceptive mandate.' The comments also criticize the narrow "religious employer" 

exception to the mandate explaining that it provides "no protection at all for individuals or 

IIlsurcrs with a moral or religious objection to contraceptives or sterilization." instead covering 

only "a very small subset of religiOUS employers." 

In tf.)elr August 31 comment to HHS, Anthony Picarello, USCCB general counsel, and Michael Moses. 

associate general counsel, noted thai the mandate to cover "aU FDA-approved contraceptives" and 

"emergency contraceptives," including at least one drug called Ella that can cause abonions, entails 

"nationwide government coercion of religiOUS people and groups to sell, broker or purchases 'services' ;0 

which they Ilave a moral or religiOUS objection ThiS represents "an unprecedented attack on religious 

liberty," they wrote. 

As to lhe exemption the comments detail how it "'5 narrower than any conscience clause ever enacted in 

federal law, and nan ower than the vast majority of religious exemptions fran' state contraceptive 

mandates," wrote Pi':areilo and Moses. "8y fall!ng to protect insurers, individuals most employers, or 3ny 

other stakeholders with a religious objection to such Items find procedures, the HHS exemption, !Ike the 

mandate Itself violales" the U S Corstt;utlon and various federal st;]fu::es 

According to Picarel 0 and Moses, the mandate violates tile Weldon amendment and the Patient Prntrction 

and Affordable Care Act (PPACA, cornmonly known as tile heaHh care reform law), as well as the 

AdmlllfstratJon's own stated pohcy to exclude from the mandate any drug that can cau;o,e an abortion Both 

the mandate and the narrow exception violate vanous protections of re:iglOus freedom under 1he First 

Amendment. 

"Until now, no federal law has prevented private insurers from accommodating purchasers and plan 

sponsors with moral or religious objections to certain services," they wrote. "Plans were free under federal 

law to accommodate those objections by allOWing purchasers to choose not to buy coverage for gp.nder 

change surgery. contraceptives, In vitro fertilization, or other procedures that the purchaser or sponsor 

found religiously or mOfaHy problematic. likeWise, federal law did not forbid any insurer, such as a 

religiously-affiliated insurer, to exclude from its plans any services to which the Insurer itself had a moral Of 

religlOLJS objection. Indeed, the freedom to exclude morally objectionable services has sometHY1eS been 

staled affirmatively III feder",l law" 

Under the mandate, they wrote, thlS wil! end. "Individuals with a moral or reilglo:JS objection to Ihp,se items 

and procedures will 'lOW be afflrrnatlvely barred by :he HHS mandate from purchasing a plan that excludes 

(contraception and ster!lIzation] Re!iglOusly-aff hated insurers with a moral or religious objection likeWise wi!! 

be affirmatively barred from offenng a plan that exctudes them to the public, even to members of their own 

religion. Secular organizaiions (Insurers, employels, and other plan sponsors) with a morai or religious 

objection to coverage of contraceptives or sterilization Will be lnellglble for the exemption" 

Religious employers that do no1 meet HHS's narrow defmition wll! also be subject to the mandate. "HHS 

http://www.usccb.org/news/2011l11-IG8.cfm 111l/2011 
29 


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USCCB Ncws:USCCB Urges Rescission ofHHS Contraceptive Ylandate, Criticizes 'Ine... Page 2 of2 

has concluded, for e):ample, that a church is not a religious employer if it (a) sPrves thosF' who aft" not 

already members of the church, (b) fails to hire based on religion, or (c) does not restrict its charitable and 

missionary purposes to the lnculcation of religious values Under such inexplicably narrow criteria-crilena 

bearing no reasonab e relation to any legitimate (let alone compelling) government purpose-even lhe 

minlslry of Jesus anc the early Christian Church would not qualify as 'relig:ous, because they did not 

confine their ministry to their co·religionists or engage only in a preaching ministry in ~ffect. the e;.:emption 

is dH'ectly at odds Wltn tile parable of the Good Saman::an, !n which Jesus teaches concern and assistance 

for those in need, re9ardless of faith differen:::es ' 

Though the problem~. with this exemption are serious and neerl to ce addrf'ssert, the comments emnhasize 

that the fundamental problem lies in the mandate itself whIch must be rescinded: "Only rescission wil! 

eliminate al! of the serious moral problems the mandate creates; only reSCISSion will correct HHS s legal!y 

flawed interpretation of the term 'preventive services" 

The fun comment Cdn be found online 

www,u5ccb.orgJabe utfgcnNal·counsfillrulemakingfuplo:l.d ::nmn ,,·r:fs to-hhs-on-pl i:Vl''' 'i':r> 

services-2011-08.pclf 

KeywordS: Department of Health and Human Services, HHS, United States Conference of 

Catholic Bishops. USCCB General Counsel, preventive services, mandate. interim rule 

comment, U.S. bishops, Anthony Picarello. Michael Moses, contraceptives, sterilization, 

abortion. religious freedom, conscience 

http://www.usccb,org/news/2011l11-168.cfrn J 11I120J J 
30 


75050.021

November 2, 2011 

The Honorable Joe Pitts 

Chairman, Subcommittee on Health 

House Committee on Energy and Commerce 

420 Cannon House Office Building 

House of Representatives 

\'i/asbington, DC 20515 

Dear Chairman Pitts: 

\l(/e thank you for holding a hearing, "Do New Health Law Mandates Threaten Conscience 

Rights and Access to Care?" 1\S you are aware, the administrative action taken by the 

Department of Health and Human Services on August 1,2011, to cover contraceptives and 

sterilization services is an unprecedented mandate which directly conflicts with the religious 

freedom and conscience rights of the American people. 

Additionally, the August 1,2011 interim final rule "allowing," but not requiring, the Health 

Resources and Service Administration (HRSA) to consider exempting certain religious 

employers is a grossly ina(Ie()uatc regulation. The exemption for religious employers is so 

narrow that it only covers a small subset of religious organizations, specifically churches. It 

does not include the vast majority of religious organizations and employers. This exemption 

reveals a profound disrespect and lack of concern for those with moral and religious 

objections to certain medical procedures. 

The Family Research Council (FRC) opposes this mandate because: 1) contraceptives and 

sterilization procedures do not constitute a form of preventive medicine since they do not 

prevent any disease; 2) access to contraception is already v,lidely available in the U.S., 

bringing into (]uestion the practical need for this mandate; 3) the mandate includes drugs 

that have abortifacient modes of action, thereby forcing all health plans to cover abortion; 4) 

the required inclusion of contraceptives and sterilization procedures in health plans will 

violate the consciences of millions of Americans who object morally to "contraceptives" per 

se as well as drugs and devices that can act as abortifacients (i.e., they can be embryocidal). 

Furthermore, the "religious employer" definition issued by HHS as an allowable exemption 

to this mandate protects so few religious groups that most religious employers will be faced 

with either violating their consciences or dropping health cm·erage. Choosing the second 

option will undermine the stated goal of the Affordable Care Act. FRC represents a large 

Christian community of concerned citizens, at least 12,0()() of whom submitted comments to 

the government via our website disagreeing v,'ith this mandate and the religious exemption. 

We join together v,'ith Daniel Cardinal Di.l\lardo representing the Catholic Church in the 

U.S., who recently stated, "Jesus himself, or the Good Samaritan of his famous parable, 

Filmilv I{e~carch Council .. HOI C Strcer N\X/ '" \\lashmgto!1\ DC 2ouol t 20239.12100" 202 VH.21.')4 fax t \\wI.I.'.frc ()rg 
31 


75050.022

would not qualify as 'religious enough' for the exemption, since they insisted on helping 

people who did not share their view of God."1 

This /\C\ministration is either unconcerned about forcing religious groups and individuals to 

violate their consciences under the new mandate, or it is unaware that tens of millions of 

Americans bave grave concerns with the use of contraceptives and sterilization procedures. 

The Administration's minimal attempt to meet the objections raised by the mandate leads us 

to question whether there bas been a serious effort to protect conscience rights by the 

federal government. Tbe coercive policy that will be forced upon millions by J-IJ-IS is not 

only bad health policy, but aho conlucts directly with several federal conscience protection 

laws in so far as it mandates the use of drugs tbat have abortifacient properties. 

Your hearing on this unprecedented mandate and conscience rights is critically irnportant. 

The mandate flies in the face of long-standing conscience protection norms and statutes 

while acquiescing to the demands of extreme proponents of contraception, sterilization, and 

abortion. For further information, please see the attached and more comprehensive 

comments we bave submitted to BBS laying out in greater detail the numerous problems 

with the contraceptive mandate and its undermining of conscience rights. 

Thank you for your consideration. 

Sincerely, 

lsi Jeanne Monahan 

Director, Center for Human Dignity 

/s/ Chris Gacek,JD., PhD. 

Senior Fellow for Regulatory Policy 

I "Statement for Respect Life Month," Cardinal Daniel N. DiNardo, Chairman, Committee on Pro-Life 

[\ctivities United States Conference of Catholic Bishops (Sept. 26, 2011). 

j'amtly lkscarch Counctl "XI)1 (1 StrcCf NW l' \Vao;hingrnn, 1)(: 201)!)1" 21)2 39' ::101)" 202..19~ 213~ fax t \\l.vw.frc org 
32 


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September 30, 2011 

Centers for Medicare & Medicaid Services, 

Department of Health and I-Iuman Services, 

Attention: CMS-9992-IFC2, 

P.O. Box 8010, 

Baltimore, MD 21244-8010 

Submitted Eledroflicalb 1/;" Email 

Re. File Code CMS-9992-IFC2 

Dear Sir or Madam, 

On August 3, 2011 the Department of Health and Human Services (HHS) issued an intenm 

final rule for individual and group health plans related to women's preventive services 

co\'erage under the Patient Protection and Affordable Care Act (PPACA).' 76 Fed. Reg . 

.. 6621 (Aug. 3, 2011). In it HHS specified Health and Research Services (HRSA) guidelines 

that must be covered by individual and group health plans under the PPACA, including 

contraceptives and sterilization procedures, among other "preventiye services" for women. 

The regulation also requested comments related to its definition for "religious employers" 

that may be eligible to receive an exemption from this coverage mandate. 

On behalf of the Family Research Council (FRC), which represents hundred of thousands of 

American families, we oppose strongly tbe decision to include, with no cost sbaring, "all 

Food and Drug Administration-approved contraceptive methods, sterilization procedures, 

and patient education and counseling'" in tbe list of mandated services which all individual 

and group health plans will be required to cover. \'Ve oppose this mandare because: 1) 

contraceptives and sterilization procedures do not constitute a form of preventive medicine 

since they do not prevent any disease; 2) access to contraception is already widely available in 

the U.S. bringing into question the practical policy need of this mandate; 3) the mandate 

includes drugs that have abortifacient modes of action thereby forcing all health plans to 

cover abortion; 4) the required inclusion of contraceptives and sterilization procedures in 

health plans will violate the consciences of millions of Americans wbo object morally to 

2 PPACA, PL, 111-148 as enacted contains ~ provision on preventive health scnTices in Section 1001, which 

created a new section 2713 of the Public Health Service Act (pHS.-\.) to mandate that all individual and group 

health plans pronde coverage for preventive care in accoclhncc with guidelines offered by the U.S. Preventive 

Sen'ices Task Force (VSPSTF). Section 2713(a)(4) of PHS;' would extend the coverage mandate to include, 

WIth no COSf shanng rcquirCl11cnts, the foUowing: "(4) with respeer to women, such addirional prevenf1vc care 

and screenings not described In paragraph (1) as provided for in comprehensive guidelines supported by the 

Health Resources and Services ;\dnllnistmtion." Paragraph (1) would include all "items or services" that arC 

currently recommended by the USPSTF. Paragraph (4) therefore would add to that mandate coverage of items 

and services not recommended by the USPSTF, but which would he provided for by the Health Resources and 

Services :\dministratlon (HRS:\) . 

. \ U.S. Department of Ht'alth and Human Sc!'\~ices Health Resources Services .. \dministration, "\XJomen's 

Preventive Services: Required Health Plan Coverage GUIdelines," _\ugust 1,2011. PI. 

http://www.hrsa.gov/womcnsguidelines/. 
33 


75050.024

"contraceptives" per se as well as drugs and devices that can act as abortifacients (i.e., they 

can be embryocidal). 

We also comment negatively on the excessively narrowly defined "religious employer" 

exemption to this mandate. Under the exemption as drafted, so few religious groups \vill be 

eligible for the exemption's protection that, in reality, most religious employers will be faced 

with either violating their consciences or dropping health coverage. We conclude by 

discussing how this unprecedented mandate conflicts wirh conscience and religious freedom 

protections currently in place to protect the f\merican people from government interference. 

I. Contraceptives Are Not Properly Classified as Preventive Medicines. 

At a most basic level, the mandate to include [he full range of FDA-approved contraceptives 

as necessary preventive medicine defies common sense because pregnancy is not a disease or 

disabling condition. Pregnancy is a beneficial, temporary condition that not only indicates a 

condition of good health on the part of the woman who is pregnant, but is a benefit to 

society in that this healthy condition is necessary for the propagation of the human race. To 

the contrary it is the woman who has difficulty becoming pregnant who experiences a 

medical complication and will likely seek medical services to reverse that medical condition. 

Pregnancy is a normal medical condition from which serious medical complications can arise 

but typically do not. Diseases or complications related to pregnancy arc to be treated, but 

pregnancy itself is not a disease or illness. 

Because they prevent the body from a normal healthy function, contraceptive services are by 

their nature elective and are not medically necessary. They should not be placed in the same 

category as other basic types of preventive medical care. 

Additional concerns exist regarding contraceptives because FDI\ has approved several drugs 

and devices as "contraceptives" that can act destructively on the embryo after fertilization as 

well as post-implantation.' The termination of a pre-born baby through early chemical 

abonion obviously would "prevent" bringing a child to tenn. However, since pregnancy is 

not a disease, the pro\'isio!l of contraceptives that function as abortifacients should not be 

required as "preventive care for women." By destroying that which is both healthy and alive 

in a woman, abortion cOlltradicts the very defmitioll of a preventive service for women. 

II. Contraceptives Are Readily Available in the United States. 

,.Arguments favoring increasing access to contraceptives as a \vay of reducing sexually transnutted diseases 

(STD), "unwanted pregnancies," or abortion are flawed. Contraceptives are widely available in the 

U.s. and already are heavily subsidized by the federal government; total public expendimres 

for contraceptive services were $1.85 billion in 2006.; Medicaid family planning costs during 

4 It is a scientifically \'alul belief that conception occurs at fertiliz:ltion and that pregnancy begins with 

fertilization and not with implantation. This analysis is supported by a recent survey of the four J-\merican 

medical dictionaries sho\ving that three of the four back this position to some extent. Christopher M. Gacek, 

"Conceiving <Pregnancy': U.~. Medical Dictlona!!cs and Their Definit.ions of 'Conception' and 'Pregnancy,'" 

Natiol/al CaifJOiit Bioe//;iuQlfarta}y V,utumn 2(09): 542-557. 

5 A. Son field, C. """lrich, and R.B. Gold, "Public Funding for Famil), Planning Sterilization and Abortion 

Services Pi 1980 2006," Otm.,iol/al Ri/,orl 38 Oan 20(8): 28-33. 
34 


75050.025

that time totaled $1.3 billion"- States additionally contributed $241 million for family 

planning in fiscal year 2006. Also in the same fiscal year, Title X, an additional funding 

stream for family planning, contributed another $215 million of taxpayer dollars for family 

planning services'" r n more recent years, Title X costs have been as high as $317 million 

annually'" 

Contraceptives are also covered by most insurance plans; nine out of ten employer-based 

insurance health plans cover the full range of comraceptives.') j\dditionally, there is no good 

evidence to suggest th;lt women who choose not to contracept are making that decision due 

to financial need. A survey of sexually active women conducted by the Guttmacher Institute 

shows only that 12 percent report "lacking access to contraceptives due to financial or other 

reasons."'" This survey leaves open the possibility that the lack of access for all such women 

is due to other reasons, not financial. 

Moreover, increased contraception does not necessarily correlate with a decrease in 

unintended pregnancies or sexually transmitted diseases. Recent peer reviewed studies from 

Sweden," the United I<ingdom,12 and Spain" agree that increased use of contraceptives 

coincides with an increase in abortions and STDs. In the United States, lower contraceptive 

use correlates with fewer abortions. From 1995 to 2002, the rate of contraceptive use 

decreased from 64 percent to 62 percent" and abortion numbers decreilsed from 1,359,400 

[() 1,269,000." 

A Federal mandate on a significant portion of the American population is unwarranted given 

the lack of need in addition to the profound implications that will arise for those who 

G Guttmacher Institute, "Facts on Contraceptive Use in the United Stares" (4\UgUSt 2011): p. 1 

(http://vwlw.guttmacher.org/ pubs/ fb_contraceptivc_serv.html) 

7 Ihid. 

8 Title [] of Division D of The Conso~dated ,\ppropriations Act, 2010 (p.L 111-117), 123 ST,\ T 3239. 

9 Guttmacher Institute, "Facts on Contraceptive Use in the United States" Oune 2010): p. 1 

Olttp:! hV\v\V.gutrmacher.nr~!pubs/th contr ll"t'.hrml). 

10 R. Jones, J. Darroch ,wd S.l<. I Ienshaw "Contraceptive Use. \mong U.S. Women Having .·\bortions," 

Pmpedim 011 Sexllal and &p!~dllcli[)e Hed!th 3~ (Nov/Dec 20(2): 294-303 

II 1'-. Edgardh, et ,I., ".\dolescent Sexual Health in Sweden," .lexllai Tr()!lJ'lIIitted llilietiollJ 78 (2002): 352·6 

01rtp:/ /srdmlllournals.com I C(11/ coolcnr / fuli!7R!~ 13S2). 

12 Soura fel Girma, David Paton, "The Impact of Emergency Birth Control on Teen Pregnancy and STIs," 

Iounzal ~lrleal!h Ecol1omic, (:\1arch 2011): 373-380. See eliso .[\. Glasier. "Emergency Contraception," Bn"!'Jh NIed/tal 

.iourna! (Sept 2006): 560-561. 

13 ].L. Duenas, et aL, «Trends in the Use of Contraceptl've T\{ethods and Voluntary Interruption of Pregnancy 

in Ihe Spanish Population During 1997-2007," COI//mc,pllOft (lanuaQ' 2011): 82·87. 

14 Guttmacher Institute, "Facts on Contraceptive Use in the United States" (June 2010): p.l 

(http://''li\\.l,,\·,~urtm<1d1Cr.()rg/puhs/t1) conrr use.html). These numbers represent use among all women age 

15A4. and thus, because many women in this age group "vould not be sexually active, the rare of usc among 

sexually active women would be higher. 

15 R.I<. Jones, :>'1. Zolna, L.B. Finer, and S.K. Henshaw, "I\bortion in the Cnited States: Incidence and Access 

to Services, 2005" PmpediNff all SfW"! alld &pflldlldll'e Health (2008): p. 9 

(bttp:! Iwww.guttmacher.org!pubs!Qsrh!full/40n060R.pdO· 

FamIly HcsL'arch CounCil 'I" MOl (, :'trcer N\V f WashmglOn, D(: 20001"" 2023')).2100'" 202.V.)).2134 f;\x -.- \l,."\v\v.frc.org 
35 


75050.026

fundamentally object to covering, providing for, or paying for contraception and 

sterilization. 

III. The Mandate Including Provision of the Full Range of FDA-approved 

Contraceptives Includes Abortifacient Drugs and Services. 

The "Food and Drug j\dministration-approved contraccpti,-e methods" reguired by the 

contraceptive mandate include a variety of drugs and devices whose modes of action can be 

destructive rather than prn-entive. There is substantial evidence that some of the included 

drugs and deviees can be destructive to a newly forming human embryo. Ho'.vever the 

Institute of Medicine (10M) committee tasked with providing recommendations for 

inclusion of services in the mandate actively ignored and overlooked the available research 

and ethical concerns regarding this critical issue. A spokesperson for the 10M brushed aside 

such research as "personal opinions" during the guestion and answer portion of the press 

conference coinciding with the release of the 10M report. BBS then in turn also ignored 

numerous peer-reviewed research studies indicating that certain drugs have abortifacient 

properties. Despite the fact that the difference between the prevention and destruction of 

life is vast in the eyes of most l\mericans, rather than erring on the side of science, evidence 

and caution on this critical issue, HHS chose to mandate the provision of drugs that likely 

have embryo destructive modes of action. 

The first of these drugs is Levonorgestral, or Plan R. Plan R possesses a number of 

mechanisms of action which can prevent a newly formed embryo from implanting in the 

uterine wall. One extensive review of the available literature on Levonorgestral revealed as 

many as seven mechanisms of action that could potentially prevent implantation of an 

embryo.'" In another literature review of the mechanisms of action of Levonorgestral, the 

authors concluded, "The evidence to date supports the contention that use of EC does not 

always inhibit ovulation even if used in the preovulatory phase, and that it may unfavorably 

alter the endometrial lining regardless of when in the cycle it is used, with the effect 

persisting for days."" Plan B's labeling information also admits this scientific reality. "[plan 

B] may inhibit implantation (by altering the endometrium)."'" 

The second problematic FDI\-approved drug covered by the mandate is ulipristal acetate, 

marketed as Ella@ by \'('atson Pharmaceuticals. To be clear, including Ella in the mandatory 

category of "preventive carc service for women" means that HHS is reguiring each health 

insurance plan to cover a drug v,,jth the ability to kill an implanted embryo. Causing the 

demise of an embryo post-implantation is agreed by all to be an abortion. FDA approved 

Ella as an "emergency cDlltraceptive," but Ella is chemically and functionally similar to the 

!6 H. Croxatto, ct aL, "}.fechamsm of .. Action of Hormonal Preparations Used for Emergency Contraception: a 

Review of the Literature," COJltraceptioJl 63 (2001): 111. 

17 C. Kahlenborn, ct aL, "Postfertilization Effect of Hormonal Emergency Contraception," Annals q/ 

Phfll7JlacOlhfra/,), (2002): 4G8. 

18 U.S. Department of Health and Human Services Food and Drug ,Idministration, "Plan B (lne Step Labeling 

Informacion" Guly 2009): p. 41Htp:/ ;,,'W\V.acct'ssdala.fda.goy/dfUvsarfda docs/laheI/200')!021998lbl.pdf. 

Family Research Cnunul .. 1i!)1 (~ StfcCf NW .. \Vashmgton, DC 2tHHll ~ 21),2.3')1 2100'- 202 191.2 f J4 fax .- \\ \\i\),.,[rcorg 
36 


75050.027

FDA-approved abortifacient, RUAH6.'·' Even Ella's label states that the drug is contraindicated for pregnancy."" 

A recent article published in Alllla!. .. o/l'!Jarma(otherapy stated "[t]he mechanism of action of 

ulipristal in human ovarian and endometrial tissue is identical to that of its parent 

compound, mifepristone."" Nllmerous other research studies confirm ulipristal's 

abortifacient mechanism of action." In one such study involving ulipristal's action in 

macaques (monkeys), 4 Ollt of 5 fetuses were aborted." 

In paperwork filed for the appronl of ulipristal in Europe, the European Medicines ,"gene), 

noted that "Ulipristal, mifepristonc and lilopristone were approximately equipotent at the 

dose levels of 10 and 30 mg/ day in terminating pregnancies in guinea-pigs ... "0> The authors 

of the AI/llals article noted: "[E]xisting studies in animals are instructive in terms of the 

potential abortive effects of the drug in humans."" Their analysis led them to conclude "it 

can be reasonably expected that the prescribed dose of 30 mg of ulipristal will have an 

abortive effect on early pregnancy in humans."'" Thirty milligrams is the precise dose of 

ulipristal now provided in a single package of Ella when purchased as an emergency 

contraceptive in the United States." 

t9 RU-486 (mifepristone; )'lifeprexlRJ) was approved in 2000 by the FDA as an "abortifacient." 

20 U.S. Department of Health and Human Services Food and Drug ~\dministration. "EUa Laheling 

Information" (o\ugust ~01O): p.1 

(htrp:/hV\V-w.acccsslhtLI.fd:u~()v / drui;satfda docs Ilahcl/:20 to /()2247 4.::0fJOlhl.pdO. 

21 D. Harrison and). Mitroka, "Defining Reality: The Potential Role "fPharmacists in ~"\ssessing the Impact of 

Progesterone Receptor t..,[odulators and T\iisoprosrol in Reproductive Health," Antlals ~lP/;armaC(}therap)' -1-5 Gall. 

2011): 115-9. 

22 Reel ot a!., "c\nriovulatOlY and Postcoital ,~\ntifertility Activity of the "-\ntiprogestin CDB-2914 \X'hen 

Admmistered as Single, I\Iultiple, or Continuous Doses to Rats," SR COlllmaption (1998): 129-136, p. 129: 

VandeVoort et aI., "Effects of Progesterone Receptor Blockers on Human Granulosa-Luteal Cell Culrure 

Secretion of Progesterone, Estradiol, and Relaxin," 62 BioloJY of ReplVriurliou (~OOO): 200-205, 200. In thlS article, 

ulipristal is referred to as "Imp·2000," Hild et aL, "CDB·2914: .\nti-progestatlonal!antiglucocorticOid Profile 

and Post-coital Anti-fertility :\ctivity 111 Rats and Rabbits," 15 I-IlIma" Repmdlli'lioll (2000): 822-829, 824; G. 

Teutsch and D. Philibert, "History anJ Pcrspccrivcs oLAntiprogestin.s from the Chemist's Point of View," 9 

[-{/{tlhltl RepfVdllctioli (1994)(suppl 1): 12-31; B. "\rrardi, J. Burgenson, S. rhld, and J. Reel, "In vitro 

i.-\ntipwgestationaJ/~\r1tiglucocorticoid ~'\cfivi[y and Progestin and Clucocorticoid Receptor B1l1djng of the 

Put::>tive ~retabolites and Synthetic DerivMives ofCDB-2914, CDB· 

4124, anclmifepristooc," ]o/lma/ oISleroid RlochrlJ1!J't~y and i\1o/et.'H/m' Biology 88 (:2004): '277 ~88. 

23 AJ-;'. Tarantal, .,A.G. Hendnckx, S.A. ~{atlin. cto al.. "Effects of Two ~\ntiprogestjlls on Early Pregnancy in the 

Long-tailed NIacaque (Almv(a/ru(im/tlm)," 54 L{Jtltraa:ptlt)f[ 1996: 107-15; European iVfcdicines Agency, "CH!\1P 

"-\ssessmcnt Report for EllaOnc," (Doc.Ref.: ElIIL\/261787/2009). 

24 European Medicines "~genc:, "CHilIP "-\"essment Report for FIIa( )ne," (Doc.Ref.: EME.V261787/20(9): 

p.IO. 

15 Harrison and ~litroka, m/Jra, 11.20, 

26 Ibid. 

27 Plan B and Ella arc not the only FD"'\-approved contraceptive drugs or devices (e.g., IUDs) that are 

potcnti~ny cmhryocldaL However, we have focused on thetTI because the medical evidence is most clear in 

these two cases that HHS's regulatory mandate includes emhryo destructive items, Therefore, it is clear that the 

mandate wIll create a conflict With the moral and religious beliefs of individuals and organizations who will be 

forced to provide such coverage or participate in such plans. 

Family H..t:~{'arch Councd .. HOI C ;\(n.:er NW ~ Wtlshingtnn, DC 20001 '" 202 39") 2100 "202.393.2134- fax ~ w\V\\"frc org 
37 


75050.028

Without a doubt the full range of FDA-approved contraceptive, included in thi, mandate 

will involve a variety of drugs and device, with mechanisms of action that can destroy life 

rather than prevent life. 

IV. Requiring Contraceptives in Health Plans Will Violate the Consciences 

of Millions of Americans. 

Regardless of the },dministratjon's position on the question of wben life begins (e.g., before 

or after implantation), it is not tbe role of tbe Secretary of Health and Human Services or 

any elected or appointed federal official to dictate wbat does or does not violate anotber 

person's conscience. Conscience is about chOIce. Insurance plan providers and participants 

should not be forced to engage in an action that they believe is tbe taking of a human life 

through the coverage of, and payment for, drugs they regard to be abortifacients, regardless 

of whether this or any Admirustration agrees. 

This type of mandate is not popular with the American people. A poll publisbed April 8, 

2009 by the Polling Company showed that 87% of Americans believe that, generally, the 

conscience rights of bealth care professionals should be protected. More specitically, an 

,-\ugust 4, 2011 Rasmussen poll showed that only 39% believe bealth insurance compal1les 

should be required to cover aU gO"ernment approved contraceptives for women, wbile 460.'0 

of respondents do not think they should be covered. Fifteen percent are undecided. '" As tbe 

government agency implementing PP"-\CA and its mandatory preventive care services 

provision, it is not the role of HHS to force Amerions to participate in services tbat violate 

their essential right of conscience. 

\'Vith this mandate, accompanied by its narrow exemption for certain religious employers 

(discussed in Section V), the Obama Administration will deny many l-\mericans a most ba,ic 

right: freedom from government interference in religious and moral matters. As a result 

many religious businesses or non-profit organizations, as weU as Americans with insurance in 

the individual market, will be forced to violate their consciences on the issues they hold mo,t 

profoundly. Employers will be forced to deny healthcare to their employees or violate their 

consciences. Indi,-iduals will be unable to purchase health plans without contnceptives and 

sterilization procedures." Individuals will be forced to subsidize services to wbicb they bave 

ethical objections. The cost of such drugs and devices ",,-ill be shifted from the patients to 

other plan participants' premiums. Individuals wanting to drop insurance coverage will be 

subject to PPAC/\'s individual mandate requiring all individuals to purchase health 

insurance, W 

V. The Definition of "Religious Employer" in the Proposed Exemption_ 

28 Rasmussen Repons, "Health Insurance" August 2011. 

Qlttp:! Ivvww.r:tsmussenreports.co!TI/pl,lblic content Ipohtics/current events Ihealthcare I;lUgl1St 20 it /_1() S;lY 

health insurance cOjnpanies should he required to cover contraceptives). 

29 This excludes those who are covered by '''gr-andfathcred'' plans that do not cover contraceptlves. 

)0 pp"\C\, Section lS01(h) as amended by Section 10106, 124 Stat. 907 (P.L 148-111). 

hllntly H.6t:;l,rrh Counrd ot flOl <.; Srreet NW ,. W:l::hington, UC ~IlOIl!t 202 il}) :::lOn *- 202 VJ1 213.J. fax t \\'\V\\; frc nrg 
38 


75050.029

The new HHS regulation purports to provide a possible exemption, depending on HRSA., 

for "religious employers" but in fact exempts only places of worship. To summarize, the 

regulation limits a "religious employer" to an organization that a) has the "inculcation of 

religious values as its purpose," b) primarily employs persons who share its religious tenets, 

c) primarily serves persons who share its religious tenets, and d) is a non-profit organization 

which under 26 USc. §§ 6003(a)(1) and 6033(a)(3)(A)(i) or (iii) is exempt from filing annual 

tax returns. 

This narrow exemption will not cover most religious non-proflt organizations which employ 

people of different faiths or which provide social services to people of other faiths. 

Additionally, this exemption will not protect religious entities providing health care services 

to the poor or those who perform missionary work in the United States or ahroad. It will 

not include religious husinesses, for-profit or non-proflt health care imurers, hospitals, or 

even many institutions of higher education. Religiously aftiliated health care issuers in the 

individual market are not exempted and the regulation does not allow HRSA the option of 

considering an exemption for such employers. In short, the exemption excludes most 

religious employers in both markets. 

Many religious employers will be forced to choose between offering health insurance for 

employees and violating their consciences on issues as critical as the destruction of life. In 

the end, conscientious employers will be forced to ,,,~thdraw health benefits. 

\Vhile one of the much-discussed purposes for passing PP ACA was to increase "access" to 

health care insurance for more <\mericans, the contraceptive mandate ultimately will do the 

very opposite. Religious employers will be forced to withdraw insurance so as to not violate 

their consciences on issues related to life and death. It can not be denied that the issue of the 

sanctity of unborn life \Vas a major obstacle to the passage of PI' I\CA With the 

promulgation of this mandate the !\dministration demonstrates a blatant disregard for the 

deeply held opinions of most Americans. 

VI. The Contraceptive Mandate Violates Current Conscience Laws and 

PPACA's Abortion Anti-mandate Provision_ 

The HI-IS contraceptive mandate violates the spirit and, in some cases, the letter of1ongstanding federal conscience laws meant to protect people and groups from government 

discrimination in health care. In the past 35 years, Congress has passed a number of laws 

(notably, the Church Amendments" and the Hyde-\V'eldon Amendment") related to 

protecting the cOIlscience rights of healthcare workers from government discrimination with 

regard to abortion or any service in a federally funded or administered program." These laws 

)1 H usc. § 30th-7. 

" Hyde-Weldon is currently contained in ~ection 508(d) or Division 0 of the Consolidated Appropriations 

,\cr, 2010 (PL 111-117), 123 Stat. 3280 (2009) which was renewed through the Department of Defense and 

rull Year Continuing "'ppropriations "'\ct of 2011 (P.L 112-10). 

~3 The HHS contr;\ceptive mandare also clc(\riy violates the principle contained in the CO:lts "\mendment (42 

U.S.C. § 238N). It also violates the conscience measure in CUfrent law governing health contracts through the 

Federal Employee Health Benefits Program . ..r\ provision mandating coverage of contraceptives is qualified to 

prevent it from applying to "religious plans," or If "the carner for the phn objects to such coverage on the 

basis of religious belIefs." See Section 728, Division C, the Consolidated Appropriations :I.ct, 2010 (pT.. 111-

117) which was renewed through the Department of Defense and Full Year Conrinuiog ~-\ppropriatlons l\ct of 

I~"mdy l{C~C,lr(h O)Urlcil * ;-{.1~1 (; S(rn:t NW '1' Wa~hJl1gton, t)<; Z(JIII)1'" 202 .. 1'J31IlI\1 t 2()2. V)1.21J.t fax ~ \\·\v\v.frc.org 
39 


75050.030

forbid discrimination in federally funded or administered programs. The HHS contraceptive 

mandate extends discrimination even further by mandating insurance coverage in the private 

market in such it way as to vIolate tbe consciences of insurers, providers, and plan 

participants who have moral or religious objections. 

First, the contraceptive mandate violates the principles contained in the Church 

Amendments. The Church Amendments offer nrious protections in federally funded 

programs against discrimination on the basis that a participant objects to abortion or other 

sen~ces to which they have a moral or religiolls objection. "Church (dl" forbids the 

government from discriminating against an individual who objects to any service in a 

program funded by EHS. It states: "No individual shall be required to perform or assist in 

the performance of any part of a health service program or research activity funded in whole 

or in part under a program administered by the Secretary of Health and Human Sen'ices if 

his performance or assistance in the performance of such part of such program or activity 

would be contrary to his religious beliefs or moral convictions. "" 

Clearly the law protects against forcing an individual to participate in any "program" or 

"research activiry" contrary to his/her moral or religious beliefs under a program funded by 

the Secretary of HHS. Such protected parts of a program or activity would include the types 

of services included in I-II-IS's contraceptive mandate. Church (d) might well apply to 

PI' ACA's "preventive sen'ices" mandate and the HHS contraceptive mandate regulation 

where a health plan is part of the state exchange program funded by HHS. However, the 

Church (d) provision clearly demonstrates the principle in law that the government should 

not require individuals to participate in health services that provide contraceptives, abortion, 

sterilization and other services to which individuals have moral or religious objections. The 

HHS contraceptive mandate openly violates this principle and may violate the letter of 

Church(d) as well. 

Second, the contraceptive mandate violates the Hyde-Weldon Amendment by mandating the 

provision of contraceptive drugs that can function as abortifaCients even if they are FDAapproved under the category of "emergency contraceptives." The Hyde-\Vcldon 

.t\mendment in current law forbids the government under the Labor, Health and Human 

Services Act (LHHS Act) from discriminating against an individual on the basis of 

objections to abortion." Hyde-'\\'eldon specifically states that the federal government, or any 

state or local government funded under the LHHS Act, may not subject a "health care 

entity" to "discrimination" on the basis that, among other things, it docs not "provide 

coverage of. ... abortions." The term "health care entiry" is defined to include "an individual 

physician or other health care professional, a hospital, a provider-sponsored organization, a 

health maintenance organization, a health insurance plan, or any other kind of health care 

faciliry, organizatIOn, or plan." 

The Hyde-Weldon Amendment does not even qualify that those who object to abortion do 

so on the basis of religious or moral grounds. It categorically prohibits government 

20ll (P.L. 112- 10). 

" 42 USc. § 238N. 

15 H yJe-Weldon is currently contained in Section 50B(d) of Division 0 of The ConsohJated Appropriations 

"ct, 2010 (P.L. 111,117), which was renewed through the Department of Defense and Full Year Continuing 

,\ppropriations .-\et of 2011 (l'.L, 112-10). 

h)mdy H.l:~(',trch CounCIl * 8tH C ~rn:t.'t l'-:W * Washmgron, DC 20001"" 202 Y.J1.21O!l * 202:vn 213,~ fax t \\w\'v.frc.nrg 
40 


75050.031

discrimination for those who refuse, for whatever reason, to participate in or cover abortion. 

As discussed in Section III some drugs and devices approved as "contraceptives" and 

included in the HHS mandate can function as abortifacients. Therefore, the contraceptive 

mandate violates the Hyde-Weldon provision by recJuiring entities that do not cover these 

drugs to do so. 

HHS does not need to adopt a specific view of the term "abortion" for the sake of 

interpreting various Federal laws regarding abortion, but it should extend protections for 

those who have various views on "abortion" as it relates to their conscience rights. Many 

believe that the use of "emergency contraceptives," such as Plan B and Ella, end the lives of 

embryos by preventing implantation or destroying those already implanted. As previously 

stated there is medical evidence that these drugs can harm an embryo by preventing 

implantation, and that Ella can cause an abortion after implantation. Since an induced 

abortion is a humanly caused interruption of pregnancy, an abortion can take place at any 

point after fertilization. Y. 

The underlying question of the Administration's view on when life begins and, therefore, 

when a termination can appropriately be labeled an "abortion" is not at issue. Rather, the 

salient issue is whether thc Obama Administration should, contrary to the Hyde/Weldon 

amendment, be able to discriminate against individuals who bold traditional and/ or scientifiC 

opinions concerning the beginning of life differing from its own. In this context, HHS need 

only recognize that the reasonable subjective view of the individual or institution should 

govern any assessment of that individual's or institution's invocation of religious beliefs or 

moral convictions.;' The contraceptive mandate, therefore, diminishes the conscience rights 

protected under Hyde/\,\Ieldon by assuming a nartO,,, vicw of "abortion" and "pregnancy." 

Even with a narrow definition of abortion, the contraceptive mandate includes a dmg that 

can function after implantation (e.g., Ella). In doing so, the contraceptive mandate violates 

Hyde-Weldon. 

In either case, the HHS contraceptive mandate clearly raises tbe possibility of conscience 

rights violations. Because employers under PP AC1\ are required to offer health insurance 

with contrKeptive coverage according to HI-IS regulations, there is no question that 

employers who have moral or religious objections to such services will be forced to violate 

their consciences or drop coverage despite penalties." HHS clearly recognized the 

conscience conllict this mandate would generate by issuing an exemption for certain 

religious employers. As stated earlier, HHS chose only to protect the conscience of a tiny 

minority of "religious employers," rather than provide protection for the typical religious 

employer that exists in America. 

}6 Gacek, Jupra, 11.2. 

)7 The term "pregnancy" in the human subject protections, 45 C.F.R. § 46.202(0 defines pregnancy starting at 

implantation. However, this definition is relevant to l<this suhpart" only as it relates to research on feruses and 

pregnant women. This definitiOn does not apply to the term "abortion" in Jlyde/\1/eldon or other federal 

statues. 

)8 The employee penalties are contained in Section 15!} and 10106 ofPPA.C.~ (P.L. 111·148), as amended by 

Section 1003 of the Health Care and Education Reconciliation 1\ct of 2010 (P.L. 111-152). 

!,'nmdv Hcscarch (:nurl.C!! t Kill (; :-itfcef NW" Washnlgtol1, DC 2Ul)ol; 21)2 ')')') 21t)l)"' 202.1:11.2134- fu t www frc.nrg 
41 


75050.032

Third, the contraceptive mandate violates the supposed "abortion compromise" in Section 

1303, as amended, ofPPA.CA.\" This section contains a provision that prevents the law 

from being used to mandate abortion coverage. It specifically states that "nothing in this 

title," which includes the section authori~ing preventive care ",rvices for women, "shall he 

construed to require a qualified health plan to ptovide coverage of" abortion services. It also 

grants the decision over coverage of abortion to the issuer of the qualified health plan. While 

FRC believes that PP i\CA aUows for federal funding for abortion, and does not accept that 

Section 1303 maintains the long-established Hyde Amendment, this specific provision does 

prevent HHS from using PPACA to mandate abortion as an essential benefit. It also clearly 

grants the decision about abortion coverage [() the insurance issuer. Since the HHS 

contraceptive mandate on private insurance includes drugs such as Plan Band EUa, it 

violates Section 1303 of PPACA. 

Indeed, the HllS contraceptive mandate also violates the statement of President Barack 

Obama in Executive Order 13535 (EO). In his EO, President Obama states that "long 

standing laws to protect conscience" such as the "Church i\mendment" and tbe "\'Veldon 

Amendment" will "remain intact." The contraceptive mandate violates thc EO which 

references tbe entire Church Amendment that, as stated above, includes conscience 

protections for services beyond abortion. The HHS contraceptive mandate, therefore, 

undermines PP"-\CA provisions with respect to abortion coverage and contradicts the EO 

which claims that it covers the Church Amendment and Hyde-Weldon Amendment. 

VI. The Contraceptive Mandate Violates the Religious Freedom 

Restoration Act. 

An additional question before us is whether the HHS contraceptive mandate impinges upon 

or burdens a person's exercise of his or her religion. In 1993, Congress enacted the 

Religious Freedom Res[()ration 1\ct ("RFRA").'" Under RFRA, the federal government "shall 

not substantially burden a person's exercise of religion even if the burden results [rom a rule 

of general applicability."" In order for a substantial burden on religious exercise to be 

permissible the government must be able to show that the law being enforced or observed is 

such that the government can "demonstrate that application of the burden to the person -

(I) is in furtherance of a compelling government interest; and (2) is the least restrictive 

means of furthering that compelling government interest."" 

The contraceptive mandate will require insurance plans to offer contraceptives and intrauterine devices free of charge to the recipient. 1\ number of religious faiths and 

denominations, tbe Catholic Church beIng the largest, have expressed motal objections to 

the use of such contraceptives for many decades. As extensively discussed above, some 

organizations and individuals believe that contraceptives arc embryo destructive," and some 

39 PP/\C\, Section 13030»(1)("\) os amended by Section 10104(c). 

40 107 Stat. 1488, as amended, 42 USc. § 2000bb fI "1, 

4J n U.S.c. § 2000hb-l(a). 

42 ~2 U.S.c. § 2000bb 1 (b). 

43 \'{'hatever one's position on contraceptives, in general, there is no denying that Ella, a drug covered by the 

contraceptive mandate has the capahility to destroy emhryonic life implanted in the uterus. As such, Ella is 

properly classified as an abortifacient, 

!,',lmfly Rl'SCMCh (_ouncil '" fin! (; ,:\truc( N\'(/ '" Wa,hmgron, LJ<: 2tHj!l1'" 2!)23~J.) 11(li~' 2(211),.2114- fax t \\1.\I\l,.frc.nrg 
42 


75050.033

also believe that even if no embryo destruction occurs contraceptives interfere \\ith the 

moral integrity of sexual relations between men and women. 

PPACA's contraceptive mandate will force those employers and employees with either set of 

beliefs or both to face a moral Jilemma. Either they can purchase or participate in insurance 

plans that cover drugs and devices that may destroy embryonic human life or facilitate 

unacceptable sexual behavior, or they can decline to purchase or participate in such 

insurance policies. The overall point is that the contraceptive maodate will compel such 

employers either to violate their c011Scieoces by keeping such plans or drop coverage for 

their employees. In turn, that will cause employees to lose their coverage and be forced to 

find coverage elsewhere. Given the universality of the contraceptive mandate, individuals 

could be forced to refuse to obtain insurance coverage and face various penalties. J\!any 

employers who drop coverage for their employees will be forced to pay penalties under 

certain CirCUITlstances. 

As established in RFRA and Sherbert v. Venter, the case that set forth the legal standard later 

adopted by Congress in RFRA, the contraceptive mandate places a substantial burden on the 

practice of religion by employers and employees." In Sllfrbert the Supreme Court observed 

that the state's denial of benefits to the appellant in that case "derive[d] solely from the 

practice of her reltgion," Rnd thRt "the pressure upon her to forego that practice [was] 

unmist~kable.""' The government's action "force[d] her to choose between following the 

precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the 

precepts of her religion ... , on the other hand."'" This, the court believed was tantamount to 

placing "the same kind of burden upon the free exercise of religion as would a fine imposed 

against the appellant for her Saturday worship."" 

The HHS contraceptive mandate places a similar burden upon the free exercise rights of 

religious organizations and individual believers. Individuals are placed in the position either 

of participating in health insurance plans that cover the pf(wision of drugs and devices that 

violate their consciences or dropping health insurance coverage. Religious organizations 

have the dilemma of either providing insurance coverage to which they object morally or not 

doing so and being penalized under PP;\CA 

Under RFRA a law or regulation that imposes a "substantial burden" on a person's free 

exercise of religion is only allowed when the government can demonstrate "that application 

of the burden" furthers '<a conlpelling governnlental intcrcsl.H,jH The contraceptive nlandate 

does not further a compelling governmental interest. It does not relate to the treatment of a 

serious or life-threatening disease or, indeed, to any disease and certainly does not involve 

a medical threat that is easily transmissible and could pose a widespread public health 

concern. 

"1-1. In Jhl'rlNrt. the COUff actually u~cd the term "subsrflotial infringement," but "substantial burden" is the 

commonly used term 1n such '11lalySIS. Sherbert 1/. V,m,r, 374 U.S. 398,406 (1%3) 

45 Sherbert, 374 U.S. at 404. 

46 Sherbert, 374 U.s. at 404. 

47 Sherbert, 374 U.S. at 404 (the appellant was a Seventh Day Adventist and attended church 011 Saturday not 

Sunday). 

48 42 USc. § 2000bb·l(b). 

Family Itv~e;lrfh (:oHnCll t HOI C; :-:'trl't't NW '" W3$.hmgton, DC 200n1*" 2!l2 Y>3 21no '" 202.)lJ1.2l'H fax·t \l.Wl\ frc org 
43 


75050.034

For example, one could imagine that a compelling governmental interest would exist for 

policies needed to contain the outbreak of a virulent airborne disease like the 1918 t1u 

pandemic. However, as stated in Section I, pregnancy is not a transmissible disease. Rather, 

it is a normal medical condition from which serious medical complications can arise but 

typically do not. The Institute of Medicine's recommendations did not present a compelling 

governmental interest related to pregnancy prevention that can justify the burdens on 

religious freedom produced by this contraceptive mandate. 

Next, the contraceptive mandate does not provide the "least restrictive means of furthering" 

the government's putative compelling interest."" As noted above in Section II, scientific 

studies have guestioned the efficacy of contraceptives in improving certain medical 

outcomes like rates for STDs and abortion, and even for reducing the rate of unintended 

pregnancies. Even if the reduction of these conditions warranted urgent governmental 

action, the proviSion of contraceptives does not seem to be effective in producing desirable 

outcomes, and the mandatory provision of contraceptives has even less justification. It 

seems logical to conclude that a "narrowly tailored" policy would only employ effective 

means to achieve its ends. 

For decades, employers and employees have been able to address the ethical concerns raised 

by contraceptives \vith minimal disruption to the provision of health care in America. The 

contraceptive mandate under consideration will be divisive for American society and 

damaging to the effective provision of health care for many religious people. Accordingly, 

the contraceptive mandate should be rescInded as a poorly conceived, coercive policy that 

violates the protections for religiOUS freedom established in federal law by RFRA. 

VII. Conclusion. 

The interim final rule as published by the Administration on j\ugust 1, 2011 is an 

unprecedented mandate which deeply conflicts \\~th religious and conscience freedom 

protections the J\merican people currently receive. \'Ve reiterate that in a democratic society 

it is not the role of the I\dministration to dictate what does or does not violate another 

person's conscience on matters as critical as life and death. Family Research Council strongly 

opposes the contraceptive mandate for the many reasons outlined above and asks that fIBS 

fully rescind this rule. 

In the event that HIlS does not rescind the contraceptive mandate, FRC asks that an 

adeguate "religious employer" definition for exemption to this mandate be developed. 1\5 

drafted, so few religious groups will be eligible for the protection from the mandate that as 

previously stated, most religious employers will be faced with either violating their 

consciences or dropping health cm'erage, which undermines the primary goal of the 

PP/\CA Regarding the extreme narrowness of the exemption offered by HHS, we agree 

with Daniel Cardinal DiNardo who recently stated, "Jesus himself, or the Good Samaritan 

of his famous parable, would not gualify as 'religious enough' for the exemption, since they 

insisted on helping people who did not share their view of God."'" 

'" ~2 usc. § 2000bb-l(b). 

F:un1lr l{c~cJrch CounClI * FlOl (; :-1rrcv( NW ~ Washington, 1)( 20()Ol>1- 202.39J.211\() ~ 202.:)<), 2t H fax ~ w\vw.frc org 
44 


75050.035

Sincerely, 

Is/ Jeanne Monahan 

Director, Center for Human Dignity 

/s/ Chris Gacek,j.D., Ph.D. 

Senior Fellow for Regulatory Policy 

J"amily Research Council 

801 G Street, N.W. 

\Vashington, DC 20001 

50 "Statement for Respect Life !vronth," Cardinal Daniel N. DiNardo~ Chairman, Committee on Pro-Life 

,\ctivitIes United :;tates Conference of Catholic Bishops (Sept. 2(), 2011). 

Fatmlv He:-;carch CnunCJ! "- 80j (; Srrect NW -" \\-'35hingrnn, DC 2o!)(jP 202.39.\2100 t 202.vn.2134 fax' \\w\v.frc org 
45 

Ms. SCHAKOWSKY. Mr. Chairman? 

Mr. PITTS. Yes? 

Ms. SCHAKOWSKY. I don’t know if this is an appropriate time, but 

I have some things I would like to submit for the record. 

Mr. PITTS. All right. If you would—— 

Ms. SCHAKOWSKY. Thank you. This is testimony from NARAL 

Pro-Choice America, Center for Reproductive Rights, National 

Women’s Law Center, ACLU, National Partnership for Women and 

Families, National Health Law Program, Physicians for Reproductive Choice and Health, and then a letter organized by Advocates 

for Youth. These have all been submitted previously and I would 

appreciate if they could be part of the record. 

Mr. PITTS. All right. We have received these. Without objection, 

so ordered. 

[The information follows:] 

46 


75050.036

~NARAL [:. J>ro..Choice America 

Refusal Laws: Another Front in the War on Women 

Testimony Presented by 

Nancy Keenan 

President 

On Behalf of 

Illinois Choice Action Team 

NARAL Pro-Choice Arizona 

NARAL Pro-Choice California 

NARAL Pro-Choice Colorado 

NARAL Pro-Choice Connecticut 

NARAL Pro-Choice Maryland 

NARAL Pro-Choice Massachusetts 

NARAL Pro-Choice Minnesota 

NARAL Pro-Choice Missouri 

NARAL Pro-Choice Montana 

NARAL Pro-Choice New Hampshire 

NARAL Pro-Choice New Mexico 

NARAL Pro-Clloice New York 

NARAL Pro-Choice North Carolina 

NARAL Pro-Choice Ohio 

NARAL Pro-Choice Oregon 

NARAL Pro-Choice South Dakota 

NARAL Pro-Choice Texas 

NARAL Pro-Choice Virginia 

NARAL Pro-Choice Washington 

NARAL Pro-Choice Wisconsin 

NARAL Pro-Choice Wyoming 

U.S. House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Health 

November 2, 2011 
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Members of the Energy and Commerce Subcommittee on Health: I am honored to submit this 

testimony. 

The question before the panel today is whether corporations or employers that oppose birth 

control should be allowed to impose those beliefs on their employees. NARAL Pro-Choice 

America strongly believes that all women should have access to reproductive-health care, 

regardless of their employer. 

Family Planning is Basic Health Care for Women 

Access to family planning is essential to women's health. The average woman wants only two 

children and will spend five years of her life pregnant or trying to get pregnant and nearly three 

decades trying to avoid pregnancy.! If a woman does not have access to contraception, she 

could have between 12 and 15 pregnancies, endangering her health and the health of her 

children.' 

And family-planning services reduce the negative health outcomes strongly associated with 

unplanned pregnancy. These outcomes include delayed or inadequate prenatal care, increased 

fetal exposure to tobacco and alcohol, increased likelihood of low birth weight and death in the 

first year of life, and higher risk of abuse'iffid failure to receive sufficient resources for healthy 

development.' When women have acce~ to affordable family-planning services, rates of lowbirth-weight births, infant deaths, and neonatal deaths considerably decrease.' 

Yet despite contraception's many health benefits, the current U.s. family-planning "system," 

such as it is, is expensive, uncoordinated, and, frankly, patchwork at best. In particular, for 

many women, contraception is simply too expensive.- One in three women has struggled with 

the cost of prescription birth control at some point, and research shows that even small costsharing requirements can put contraception out of reach.6 Consequently, the United States has 

a far higher unintended-pregnancy rate than other industrialized countries.' 

Paying out of pocket for contraception can result in annual fees of more than $700.' Over the 

span of a woman's reproductive years (15-44),' the cost of contraception can amount to more 

than $20,000. Given that studies have shown a link between lack of insurance and decreased 

use of prescription birth control,!O coverage is critical for promoting women's health. 

Additionally, cost has an overwhelming effect on whether women are able to use contraception 

consistently. Financial barriers to birth control have a significant, documented effect: women 

who are concerned with cost are twice as likely to use less effective birth-control methods as 

women who do not worry about the cost.ll Moreover, research shows that when women cannot 

afford highly effective contraceptive methods, such as intrauterine contraceptives (lUCs), they 

use methods with higher failure rates.!' 
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And in our current economic climate, the situation has become more acute. A 2009 Guttrnacher 

Institute survey found that because of the economic recession, 23 percent of women reported 

having trouble paying for birth control and 24 percent put off a gynecological or birth-control 

exam due to cost." This study underscores the difficulty women face affording contraception 

and meeting basic health-care needs. Providing UIriversal no-cost birth-control coverage is 

essential to increasing access to critical preventive-health care. 

The Affordable Care Act Offers an Historic Opportunity 

to Expand Women's Access to Contraception 

The federal health-reform law presents an unprecedented opportunity to improve women's 

access to comprehensive, preventive health care by ensuring the affordability of familyplanning services for almost all u.s. women. In particular, Section 2713(a)(4), known as the 

Women's Health Amendment, removes significant financial obstacles for women seeking 

preventive reproductive-health care." 

As part of its work to implement this section of the law, in August the Obama administration 

accepted an Institute of Medicine panel's recommendation that family planning be considered 

preventive-health care. With this groundbreaking decision, newly issued insurance plans must 

cover the full range of Food and Drug Administration-approved contraception at no additional 

cost. If allowed to go into effect fully, this historic policy will represent a tremendous step 

forward for women's reproductive health. 

Do Employers and Corporations Have Consciences? 

Birth control is entirely noncontroversial. Ninety-nine percent of sexually active women have 

used contraception.15 Despite this, some still attempt to block women's access to familyplanning services. Their latest tactic is to try to undermine the Affordable Care Act's new 

family-planning benefit by claiming corporations and employers have "consciences" that 

override women's rights. 

Make no mistake: in most cases, the debate around employer "conscience" is a proxy for 

opposition to birth control, one of the many fronts in the War on Women. Rep. Steve King (RIA) took to the House floor in August in protest against the contraception benefit, claiming that 

preventive medicine like birth control could lead to a dying civilization." In discussing 

whether birth control should be considered preventive care, American Life League President 

Judie Brown railed, "Providing free birth control may, sadly, prevent a life of a child; yet it also 

causes more promiscuous activity which leads to more cases of sexually transmitted disease 

and more opportunities for the users to experience stroke, heart attack and even death - not to 

mention the pill's potential effect as the silent killer of prebom children."" Sandy Rios, 

president of Family-Pac Federal, mocked the benefit: "We're $14 trillion in debt and now we're 

2 
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going to cover birth control, breast pumps, counseling for abuse," she challenged. "Are we 

going to do pedicures and manicures as well?"" 

These elected officials, organizations, and their aBies' comments appear in the context of 

employer "conscience" - but their baseline position is opposition to contraception altogether. In 

this view, they are far out of the mainstream. And precisely because Americans correctly see 

birth control as noncontroversial, the public strongly opposes refusal laws. Nearly nine out of 

10 Americans oppose refusal laws that allow certain institutions to refuse to provide health-care 

payment or services.l ' Eighty-nine percent oppose allowing insurance companies to deny 

coverage for medical services.20 Eighty-six percent oppose allowing employers to exclude 

coverage for medical services from their employees' health plans. 21 Simply put, the public does 

not agree that a corporation or an employer has a "conscience" that overrules an individual's. 

NARAL Pro-Choice America believes that persons have consciences, which they may exercise 

in an individual capacity. We do not believe that it is appropriate for institutions at large to 

claim a "conscience," thereby denying others medical care that is safe, legal, and medically 

indicated. Carefully crafted refusal laws may be appropriate in some circumstances to protect 

individuals. But an individual who is also an employer is in that capacity effectively acting as a 

corporate entity; she retains an individual right of conscience that governs her own behavior, 

but does not have the right to impose her views on employees. 

Moreover, institutions that operate in the public sphere and serve the public should not be 

allowed to impose one particular religious view on the general public, including their 

employees. Some of the most vocal opposition to the regulation requiring contraceptive 

coverage comes from the Catholic Health Association. Currently, Catholic hospitals employ 

more than 750,000 individuals," many of whom may not share the same religious beliefs as 

their employer. The mission of Catholic hospitals is to serve the general public; they do not 

limit their services strictly to adherents." These institutions accept federal funds and participate 

in federal health-care programs. Given these facts, it would be unwarranted to allow these 

entities to choose which public standards with which to comply. 

Finally, some claim that employers and cqrporations should not be forced to pay for a service 

they oppose on religious grounds. We live in a pluralistic society; such a claim is at least 

impractical, if not entirely untenable. The Church of Jesus Christ of Latter-Day Saints opposes 

tobacco use; maya Mormon employer deny his employees smoking-cessation benefits? Is every 

corporation and employer to be allowed to force its view on its employees - even if the 

employees do not share the same beliefs?~'That in essence is what those requesting a broad 

refusal right from contraception are demBfding. 

AU Women Should Have Access to Family-Planning Care 

A key promise of the health-care law is that women will no longer be subject to extra charges 

for necessary preventive care. This benefit has the potential to help millions of women and will 

3 
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be one of the most impactful provisions uf the Affordable Care Act. Denying benefits to large 

populations of women undermines one of the most important public-health goals of the 

Women's Health Amendment. Those who wish to block their employees' access to a full range 

of contraceptive services are not required to prescribe or take birth control against their beliefs, 

nor are they being asked to endorse it. They are free to continue opposing the use of 

contraception in their personal capacity. But they may not deny others their right of conscience 

to use birth control, should they so choose. 

On behalf of NARAL Pro-Choice America and its more than one million member activists 

around the country, we urge the subcommittee to ensure that all women, regardless of where 

they work, are able to realize the full benefits of comprehensive reproductive-health care. 

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1 Guttmacher Institute, In Brief Facts on Contr~ceptive Use in the United States, June 2010, at 

http://www.guttmacher.orgipubs/fb_contr_use.html(last visited Oct. 31, 2011); Rachel Benson Gold, The 

Need for and Cost of Mandating Private Insura~i::e Coverage of Contraception, ALAN GUTTMACHER REP. ON PuB. 

POL'Y, Aug. 1998, at 5; Abigail Trafford, Viagra and the Other Ser Pill, WASH. POST, May 19, 1998, at Z6. 

2 Abigail Trafford, Viagra and the Other Sex Pill, WASH. POST, May 19, 1998, at Z6. 

J Committee on Unintended Pregnancy, Institute of Medidne, THE BEST INTENTIONS: UNINTENDED 

PREGNANCY AND THE WELL-BEING OF CHILDREN AND FAMILIES (Sarah S. Brown & Leon Eisenberg, eds. 

1995). 

• Guttmacher Institute, Issues in Brief The U.S. Family Planning Program Faces Challenges and Cil/mge, at 

http://www.guttmacher.orgipubs/ib3.html(last visited Oct. 31, 2011). 

5 Guttmacher Institute, Contraceptive Needs and Services: National and State Data, 2008 Update (May 2010), at 

http://www.guttmacher.orglpubsiwinicontraceptive-needs-2008.pdf (last visited Oct. 31, 2011). 

• Adam Sonfield, Contraception: An Integral Component of Preventive Care for Women, 13 GUTIMACHER PoLICY 

REVIEW (2010) at http://www.guttmacher.orgipubsigpr/13/21gpr130202.htmJ (last visited Sept. 27, 2011). 

'Lawrence B. Finer, and Mia R. Zolna, Unintended Pregnancy in the United States: Incidence and Disparities, 

2006, CONTRACEPTION, Jul. 28 2011. 

, Adam Sonfield, The Case for Insurance Coverage of Contraceptive Services And Supplies Without Cost-Sharing, 

14 GUTIMACHER POLlCY REVIEW (2011), at http://www.guttmacher.orgipubsigpr/14/1igpr140107.html(last 

visited Oct. 26, 2011). 

'Guttmacher Institute, In Brief Facts on Contraceptive Use in the United States, June 2010, at 

http://www.guttmacher.orgipubs/fb_contr_use.html(last visited Oct. 31, 2011). 

10 Adam Sonfield, The Case for Insurance Coverage of Contraceptive Services And Supplies Without Cost-Sharing, 

14 GU1TMACHER POLlCY REVIEW (2011), at http://www.guttmacher.orgipubs/gpr/14/1/gprI40107.htmJ (last 

visited Oct. 26, 2011). 

11 Adam Sonfield, The Case for Insurance Coverage of Contraceptive Services And Supplies Without Cost-Sharing, 

14 GU1TMACHER POLICY REVIEW (2011), at http://www.guttmacher.orgipubs!gpr/14/1/gprI40107.html(last 

visited Oct. 26, 2011). 

12 Kelly Cleland, et aI., Family Planning as a Cost-Saving Preventive Health Service, THE NEW ENGLAND 

JOURNAL OF MEDICINE (2011), at http://healthpolicyandreform.nejm.org!?fFI4266&query~TOC (last visited 

Sept. 27, 2011). 

"Guttmacher Institute, A Real Time Look at the Impact of the Recession on Women's Family Planning and 

Pregnancy Decisions, (Sept. 2009), at http://www.guttmacher.org/pubs/RecessionFP.pdf (last visited Oct. 28, 

2011). 

"P.L. 111-148, ll1th Congo (2010) § 2713(a)(4). 

15 Rachel K. Jones and Joerg Dreweke, Countering Conventional Wisdom: New Evidence on Religion and 

Contraceptive Use, Guttmacher Institute 4 (Apr. 2011), athttp://www,guttmacher.orgipubs/Religion-andContraceptive-Use.pdf (last visited Oct. 31, 2011), 

" 157 CONGo REC. H5879 (daily ed. Aug. 2,2011) (statement of Rep. King). 

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11 Judie Brown, Villains, Vultures, and 'Preventi1le Services, '" RenewAmerica.com, at 

http://www.renewamerica.com/columns/brown/101109 (last visited Oct. 28, 2011). 

"Tanya Somanader, Fox 'Expert' Blasts Exp"nditlg Access To Birtl' Control: 'Are We Going To Do Pedicures 

And MaTlic" res As Well?', ThinkProgress.com, Aug. 2, 2011 at 

http://thinkprogress.org!health/2011/08/02/285620/fox",,xpert-blasts-expanding-access-to-birth-control-arewe-going-to-do-pedicures-and-manicures-as-weIII (last visited Oct. 31, 2011). 

"ACLU Reproductive Freedom Project, American Civil Liberties Union (ACLU), Religious Refusals and 

Reproductive Rights, at 20 (2002). 

'" ACLU Reproductive Freedom Project, American Civil Liberties Union (ACLU), Religious Refusals and 

Reproductive Rights, at 20 (2002). 

21 ACLU Reproductive Freedom Project, American Civil Uberties Union (ACLU), Religious Refusals and 

Reproductive Rights, at 20 (2002). 

12 The Catholic Health Association of the United States, Catholic Health Care in the United States, January 

2011, at http://www.chausa.orgIWorkArea/linkit.aspx?LinkIdentifier-id&ItemlD=2147489259 (last visited 

Oct. 28, 2011). 

2J The Catholic Health Association of the United States, Catholic Health Care in the United States, January 

2011, at http://www.chausa.orgIWorkArea/1inkit.aspx?Linkldentifier-id&ItemlD=2147489259 (last visited 

Oct. 28, 2011). 

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Testimony of the Center for Reproductive Rights 

Hearing: Do New Health Law Mandates Threaten Conscience Rights and Access to Care? 

Energy and Commerce Committee 

Subcommittee on Health 

November 2, 20 II 

The Center for Reproductive Rights respectfully submits the following testimony to the 

Energy and Commerce Committee's Subcommittee on Health. Since 1992, the Center for 

Reproductive Rights has worked toward the time when the promise of reproductive freedom is 

enshrined in law in the United States and throughout the world. We envision a world where 

every woman is free to decide whether and when to have children; where every woman has 

access to the best reproductive healthcare available; where every woman can exercise her 

choices without coercion or discrimination. More simply put, we envision a world where every 

woman participates with full dignity as an equal member of society. 

Summary 

The Majority staff's framing of this hearing, as set forth in the Internal Memorandum dated 

October 28, 2011, and circulated to Members of the Subcommittee on Health, is fundamentally 

flawed, because it only conceives of conscience rights as belonging to healthcare providers and 

employers. By stating that the Affordable Care Act lacks "adequate conscience rights 

protections," the Majority staff narrowly dermes "conscience rights" to mean only the rights of 

the I % who object to birth control- ignoring the fact that 99% of American womenl - and 98% 

of Catholic women2 - have used contraception. 

The Memorandum presents two related, but distinct, issues: the exemption for "religious 

employers" from the contraceptive coverage requirements, and a bill, H.R. 1179, that would go 

much further and allow insurers to opt out of any of the coverage requirements contained in the 

Affordable Care Act. We will first briefly address the threat posed by H.R. 1179, and then 

develop the case against any exemption from the contraceptive coverage requirement. In sum, 

the religious exemption proposed by the Department of Health and Human Services is not 

I CDC, NATIONAL SURVEY OF FAMILY GROWTH ,VITAL AND HEALTH STATISTICS, USE OF CONTRACEPTION IN THE 

UNITED STATES 1982·2008 (Aug. 2010) available al http://www.cdc.gov/nchs/datalserieslsr_23/sr23_029.pdf 

(More than 99% of women I S-44 years of age who have ever had sexual intercourse with a male. referred to as 

"sexually e"perienced women," have used at least one contraceptive method). 

2 CDC, NATIONAL SURVEY OF F AMIL Y GROWTH. NATIONAL HEALTH STATISTICS REpORT. SEXUAL BEHAVIOR, 

SEXUAL ATTRACTION. AND SEXUAL IDENTITY IN THE UNITED STATES: DATA FROM THE 2006-2008 NATIONAL 

SURVEY OF FAMILY GROWTH (Mar. 3, 20 II) available al http://www.cdc.gov/nchsldatalnhsr/nhsrtl36.pdf. 
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required by either the Constitution or the Religious Freedom Restoration Act, and would be 

terrible public policy. But the proposed bill- the so-called "Respect for Rights of Conscience 

Act" (H.R. 1179) - is far, far worse. 

I. The "Respect for Rigbts of Conscience Act of 2011" (H.R. 1179) is an InsuranceRefusal and Healtbcare-Denial BiU tbat Provides No Protections for Employees or 

Patients 

By embracing a cramped and insupp~mably narrowly conception of "conscience rights," the 

Majority staff endorses H.R. 1179 - an 'lnsurance refusal bill that would allow insurance 

companies, hospital administrators, and employers to impose their religious beliefs on patients 

and employees - without any regard for patients' and employees' consciences or beliefs. The 

bill would penn it, for example, a Catholic-affiliated insurer to deny prenatal coverage for an outof-wedlock pregnancy. It would pennit a Latter Day Saints-affiliated employer to limit insurance 

benefits for gay or lesbian employees. It would pennit a Baptist-affiliated hospital to refuse to 

treat a Jew. And it would penn it a Muslim doctor to refuse to treat injuries resulting from an 

accident caused by alcoholic intoxication. It would, in short, give every employer the right to 

veto essential insurance coverage to employees; and give every hospital administrator or 

individual doctor the right to deny even life-saving treatments to patients in need. 

The misleadingly titled "Respect for Rights of Conscience Act of2011" (H.R. 1179) would 

allow healthcare administrators and corporations to cut medical benefits and services to 

employees and patients in the name of religion. The bill aims to strip patients of the protections 

of the Affordable Care Act by giving companies and hospital bureaucrats a veto over employees' 

healthcare benefits. The bill cynically protects the so-called "right" of insurance companies and 

employers to deny coverage, while doing nothing to protect the rights of patients and employees. 

The bill undennines every requirement within the Affordable Care Act and is an attack on the 

nature of insurance, which is intended to spread risk and provide enrollees with access to a basic 

standard of care. 

The bill also fails to protect the consciences of doctors and nurses who have a conscientious 

duty to provide the highest quality of medical care to patients - even if doing so may contravene 

official Catholic dogma. The proposed bill would allow hospitals to prevent doctors from 

treating patients - even when necessary to save a patient's life - if doing so would contravene 

the hospital's official professed belief. For example, Catholic hospitals could block doctors from 

saving the lives of women with ectopic pregnancies if a therapeutic abortion were required. A 

2008 peer-reviewed article in the American Journal of Public Healthl reveals that Catholic 

hospitals are already preventing doctors from treating women suffering from life-threatening 

miscarriages and late ectopic pregnancies; this bill would give these hospitals legal cover and 

allow them to force doctors to stand idly by while patients die from treatable conditions. 

The bill is particularly dangerous because it provides absolutely no safeguards for patient 

quality of care. Any policy to protect the right of conscience must be even-handed and protect 

the conscience rights of both those would deny and those who would provide services, and any 

3 Lori freedman, Uta Landy, and lody Steinauer, When There's a Heartbeat: Miscarriage Management in 

Catholic· Owned Hospitals, 98 AM. J. PUBLIC HEALTH 1774 (2008). 

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institution that would like to make arrangements to accommodate conscience objections must 

ensure that patient care is not compromised in so doing. Any policy to protect the right of 

conscience must be even-handed and protect the conscience rights of both those would deny and 

those who would provide services. Conscience protections must: 

Limit religious objections to individuals - not institutions or corporations - and limit 

religious objections to participation in a procedure - not for pre- or post-operative care, 

health-insurance coverage, or prescription-drug coverage. 

Assure that providers that do want to provide care are insulated from retaliation or other 

harm. 

Require fully informed consent to medical procedures (or a lack thereof) on the part of 

patients without any delay in care. 

Require that the employee or patient be referred to another healthcare provider to ensure 

continuity of care, and protect the rights of doctors and other providers who want to 

provide care. 

Religious objeCtions may not be invoked in emergencies in which doing so would 

jeopardize a patient's health or life. 

These basic and minimum safeguards are essential to insure that patient care is not compromised, 

and that conscience provisions, in practice, preserve the right for those doctors and other 

providers who do want to provide care to practice medicine consistent with their own views. 

Indeed, H.R. 1179 is an attack on the very nature of insurance, as it would allow insurers to 

deny coverage on allegedly "moral" grounds, however pre-textual these may be. This 

breathtakingly broad abdication of authority runs counter to the central goal of the Affordable 

Care Act and numerous other consumer and patient protection laws, which seek to expand 

coverage (and thereby increase care and diminish costs), and to set out a fundamental and basic 

level of access to medical care for all Americans. 

For example, as with H.R. 358, the "Let Women Die" bill, H.R. 1179 could be invoked to 

permit the refusal of care to women facing emergency situations by allowing a claim of 

conscience to supersede the treatment requirements in the Emergency Medical Treatment and 

Active Labor Act. EMTALA today does provide basic and fundamental levels of protections. As 

first-hand accounts by doctors from the American Journal of Public Health survey mentioned 

above show, a religiously-affiliated hospital that refused to complete a miscarriage, essentially 

risking a woman's health, was reported for an EMTALA violation: 

Dr B, an obstetrician-gynecologist working in an academic medical center, described 

how a Catholic-owned hospital in her western urban area asked her to accept a patient 

who was already septic [suffering from infection]. When she received the request, she 

recommended that the physician from the Catholic-owned hospital perform a uterine 

aspiration there and not further risk the health of the woman by delaying her care with the 

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transport. [From the doctor:] "Because the fetus was still alive, they wouldn't intervene. 

And she was hemorrhaging, and they called me and wanted to transport her, and I said, 

"It sounds like she's unstable, and it sounds like you need to take care of her there." And 

I was on a recorded line, I reported them as an EMT ALA violation. And the physician 

[said], "This isn't something that we can take care of." And I [said], "Well, ifI don't 

accept her, what are you going to do with her?" [He answered], "We'll put her on a floor 

[i.e., admit her to a bed in the hospital instead of keeping her in the emergencr room]; 

we'll transfuse her as much as we can, and we'll just wait till the fetus dies." 

This shocking delay in care is caused by hospitals' adherence to Religious Directives from 

the U.S. Conference of Catholic Bishops - including those cases that clearly conflict with 

medical standards. The Directives require doctors to wait until the fetal heartbeat stops before 

completing a miscarriage,,even if the pregnancy is no longer viable. In the meantime, women 

risk a life-threatening form of infection. 

H.R. 1179 bill would allow institutions to insist on policies that deny patients care, trumping 

doctors' professional judgment and training. Freedman's report tells one such story: a doctor 

appalled at the denial of care to a woman having a miscarriage - a woman so ill that her eyes 

filled with blood from the infection caused by the delay subsequently quit his job in disgust. 

Nationally, one-sixth of hospital visits are to religiously affiliated hospitals. The notion that 

care would differ so drastically from one emergency room to another is out-of-step with public 

health needs and the beliefs of religious adherents, who, polls indicate, agree that medical care 

should not be restricted by religion.5 

Only physicians, not institutions, have a conscience. Granting institutions a right of refusal 

merely guarantees that doctors who choose to provide care consistent with their own beliefs and 

training won't be able to do so, and thereby hurts patients. Chillingly, H.R. 1179 would ensure 

that hospitals' and insurers' institutional dictates, including those at odds with medical science, 

could override the consciences of doctors, even when those dictates risk women's lives. 

For the first time, H.R. 1179, the "Insurance Refusal" bill, would extend refusal rights to 

insurers. For those concerned about the rights of individual doctors to refuse to provide a 

particular medical service, existing law already amply protects doctors, nurses, and other 

providers who have an objection to performing abortions, sterilizations, and related procedures. 

H.R. 1179 would go much further than current law, and would harm the rights and care of 

doctors and patients. 

II. A Religious Exemption Broader than that Proposed by the Department of Health 

and Human Services Would Gut the No-Copay-Contraception Requirement 

A. Broader Exemption Would Undermine the Preventive-Services Requirement 

'Id. 

S See, e.g., Belden, Russannella, and Stewart, Surveys of Votl''' in Four Congressional Districts for Catholics for 

Choice (2009), available at http://www.cotho/icsforchoice.org/documents/DistrictPoliingExecutiveSummary.pdf 

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We next address the problematic exemption proposed by HHS to the contraceptive coverage 

requirements. As set forth below, no religious exemption to the no-copay-contraception 

requirement is required by the Constitution or the Religious Freedom Restoration Act. To the 

extent that there is such an exemption, it should be as narrowly drawn as possible, and apply 

solely to ministerial employees, rather than denying coverage to, for example, a church secretary, 

a parish groundskeeper, or a gentile hired by a synagogue to perform tasks on the Sabbath.6 

Broadening the religious-exemption grounds beyond those proposed by the Department of 

Health and Human Services ("HHS") risks gutting the entire no-copay-contraception 

requirement. For example, giving religious hospitals an exemption would create a system in 

which exemptions swallow the rule and thus become unworkable. According to the Catholic 

Health Association of the United States, Catholic Hospitals account for 15.8 percent of all 

hospital admissions - about one out of every six patients nationwide, and more than one-fifth 

of all admissions in 22 states.? And Catholic hospitals employ nearly 800,000 people nationwide 

532,011 full-time employees and 237,657 part-time employees.s Many of these employees are 

not themselves Catholic - regardless, 98 percent of Catholic women use contraception.9 

Extending the exemption to Catholic hospitals would make Swiss cheese out ofthe coverage 

requirement. 

Extending a religious exemption to religious schools would strip more than 300,000 workers 

and their families of critical preventive services, including no-copay contraception. lo Of these 

more than 300,000 employees, more than 150,000 work at Catholic schools. I But the National 

Catholic Education Association admits that only a tiny fraction of these Catholic school 

employees 3.7 percent - are actually members of the clergy. The remaining 96.3 percent of 

Catholic school employees are laity - and a substantial number of them are not even Catholic. 12 

Allowing religious universities to receive an exemption would further frustrate the purpose of 

the preventive-services requirement. There are about 900 religiously affiliated colleges and 

6 Observant Jews are prohibited from doing work on the Sabbath, which some interpret to include tasks sucb as 

opening doors and turning on or ofT lights. Orthodox synagogues often bire a non-Jew to perform these duties on 

tbe Sabbath. 

7 Catholic Health Association of the United States, Calholic Health Care in the United Slales, Jan. 2011, available 

a/ hnp:!!www.chausa.org!WorkAreallinkit.aspx?LinkldentifieFid&ItemID=-2147489259. 

• Id. 

9 CENTERS FOR DISEASE CONTROL, NATIONAL SURVEY OF F AMIL Y GROWTH, NA TlONAL HEALTH S TATISnCS 

REpORT, SEXUAL BEHAVIOR, SEXUAL A lTRACTlON, AND SEXUAL IDENTITY IN THE UNITED STA TES: DATA FROM THE 

2006--2008 (Mar. 3, 2011) available at hnp:llwww.cdc.gov/nchs/datalnhsr/nhsr036.pdf. 

10 U.S. Dep't of Education, National Center for Education Statistics, Characteristics of Private Schools in the United 

States: Resultsfrom Ihe 2009-2010 Prviate School Universe Survey, at 7, Table 2, May 26, 2011, available at 

hnp:llnces.ed.gov/pubsearch/pubsinfo .• sp?pubid=201 \339. Indeed, because the statistics indicate 314,489 full-time 

equivalent employees, the real number of religious-school employees, in light of the fact that some employees are 

part-time, is actually larger. 

1 According to the National Catholic Education Association, Catholic schools in the United States employee 

151,473 "full-time equivalent professional staff." Given the number of pan-time workers, and non-professional 

staff (such as groundskeepers and maintenance workers), the number is even greater. 

12 While schools may give a preference to Catholics, it is not a requirement for employment in most positions. See, 

e.g., Archdiocese Chicago Catholic Schools, Careers, available al 

hnp:!!schools.arcbchicago.orgicareers/elememaryschooll ("[p]reference in hiring may be given to teachers who are 

Catholic ... "). 

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universities, with 1.7 million students in the United States,13 including 244 Catholic degreegranting institutions. 14 These institutions employ tens, if not hundreds, of thousands of peoplethe vast majority of whom are not members of the clergy, and a substantial percentage of whom 

are not even Catholic. These thousands of people - plus their families - would be stripped of nocopay access to contraception if the exemption were broadened. 

And, of course, there are numerous other kinds of businesses beyond charities, hospitals, 

schools, and universities that are affiliated with religious organizations - everything from radio IS 

and television stationsl6 to condominiumsl7 to paintball courses. 13 These businesses, many of 

which operate as secular businesses, employ untold thousands of people across the nation - all of 

whom could be stripped of their access to no-copay contraception if the exemption were 

widened. Given the life-altering impact of an unintended pregnancy, even one woman's health 

interest should be sufficiently compelling to provide a basis for the rule. 

B. The ERISA Church-Plan Exemption Policy is Not a Workable Religious Exemption 

The Alliance of Catholic Health Care proposes using the church-plan exemption in the 

Employee Retirement Income Security Act (ERISA). Under ERISA, an organization is eligible 

for church-plan status if it "shares common religious bonds and convictions with that church or 

convention or association of churches.,,19 

The ERISA church-plans exemption is vague and overly broad. It is not a workable 

defmition. The contours of precisely which employers are eligible for church plans continues 

even 37 years after the exemption was created. The constitutionality of the church-plan 

exemption has never been decided by the Supreme Court. Despite claims to the contrary, the 

reason for the exemption, as a matter of legislative history, was not related to "church 

governance," but rather was the outcome of routine legislative horse-trading needed to enact 

ERISA. There are no "church governance" reasons why pension plans for religious employers 

should lack the kind of basic consumer and transparency protections that ERISA provides. 

Moreover, notwithstanding the uncertainty about which employers are eligible, the broad 

church-plan language could exclude millions of women from contraceptive coverage, including 

many employers with virtually no connection to houses of worship, such as religiously affiliated 

businesses, schools, universities, broadcasters, and entertainment venues. 

13 United States Conference of Catholic Bishops, The Catholic Church in the United States at a Glance, (figures 

through 2009) http;llwww.usccb.arg/oomm!cathalic-church-statistics.shtrnl; Council for Christian Colleges and 

Universities, About CCCU, http://www.cccu.argiabaut; Lutheran Colleges, Our Colleges 

http;/Iwww.lutherancalleges.argl. 

!4 Association of Catholic CoHegf!s and Universities~ Colleges and Universities, available at 

http://www.accunet.argli4a1pages/index.cfin?pageid~]489. 

" For example, Bonneville International, which owns more than a dozen radio stations, is owned by the Church of 

Laller Day Saints. hllp://banneviIle.cam. 

"See. e.g., KSL-TV Utah (NBC affiliate owned by the Church of Laller Day Saints), http://www.bl.oom!. 

11 See Lesley Mitchell, Monnon Church Has Built Downtown Housing.- Will People Come?, SALT LAKE TRIBUNE, 

Sept. 27,2011, available at http://www.sltrib.com!sltrib/news/52583204-78/crcek-units-church-1ake.htrnl.csp. 

Ii See, e.g., loshua's Paintball Jungle, a ministry of First Bible Baptist Church in Rochester, NY. 

http;l/jpj.fbbc.info/about.shtm!. 

"Title 26, section 414 of the Internal Revenue Code, at (e). 

6 
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75050.049

In light of its dubious constitutionality and unworkability, Congress has wisely been moving 

away from exempting church plans from federal healthcare requirements over the past fifteen 

years: llPAA (1996); Newborns and Mothers Health Protection Act of 1996; Michelle's Law 

(coverage for certain dependent children); CIllPRA (requiring notice of certain state children's 

health insurance programs); the Mental Health Parity and Addition Equity Act; and, of course, 

the Affordable Care Act. 

There is no reason for Congress to now change course and resuscitate the broken church-plan 

model. And for the reasons explained below, expanding the scope of the religious exemption 

would be terrible policy. 

C. Expanding the Religious Exemption to Include Hospitals and other Religiously 

Affiliated Institutions is Unwarranted Under the Law and Would Be Terrible Policy 

There is simply no reason for Congress to expand the already overbroad proposed exemption. 

First, many hospitals, even those with "religious affiliations," do not receive funding from any 

religious sources, or receive only very de minimus funding from religious sources. When St. 

Joseph's, the Phoenix hospital in which an abortion was performed last year, lost its Catholic 

designation, hospital officials indicated to news reporters that the only change in hospital 

practice would be related to the performance ofreligious services at the hospital. As ABC News 

reported, "[h ]ospital officials insist the severing of ties with the Catholic Church will have no 

practical implications for health care delivery although the bishop will no longer allow mass to 

be said at the hospitaL"ZO 

Such hospitals are also subject to hundreds, if not thousands, of state and federal laws 

regulating hospital practices, as well as to generally applicable accreditation standards. To name 

a few, the Medicare Conditions of Participation regulate hospital practice at the federal level, 

while states license facilities and grant their Certificates of Need. In addition, the Emergency 

Medical Treatment and Active Labor Act ("EMT ALA") imposes conditions requiring 

emergency treatment when a patient is presented, without consideration of economic or other 

factors related to the characteristics of the patient. Even more importantly, a majority of 

employees at most institutions are likely to have no connection to the religious affiliation of the 

institution. The actions of hospitals and affiliated providers are also subject to generally 

applicable standards of medical negligence as determined by state law. In sum, hospitals, 

including those with religious affiliations, serve the health needs of the general public. In both 

function and form, these institutions perform a secular purpose for the broad and general pUblic. 

Separately incorporated social services centers, even if faith-based, are also subject to 

generally applicable tort standards and a host of federal and state laws and regulations, including 

those related to hiring practices, discrimination, hygiene and other standards. Those that serve a 

majority of religious adherents and employ a majority of religious adherents may qualify for the 

exemption; others, who do not qualify on these two grounds, are clearly serving the general 

public and employ members of general public who deserve to be able to avail themselves, as 

20 Dan Harris, Bishop Srrips Hospital a/Catholic Slatus After Abortion, ABC NEWS, Dec. 22, 2010. See 

http://abcnews.go.comIHealthfabortion-debate-hospital-stripped-catholic-statusistory1id= 12455295. 

7 
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they choose, of the benefits of contraceptive coverage. The lines drawn by HHS, while 

unnecessarily overbroad, do some service by clearly excluding institutions that are performing a 

secular function. 

In both situations, an expansion of the exemption would also raise the specter that some 

institutions that lack an obvious religious function will claim the exemption for reasons unrelated 

to religious sentiment. To the extent that no-copay contraception is an expense for insurers, it is 

indisputable that employers who seek to price and obtain coverage could prefer insurance 

coverage within the exemption for cost reasons alone. Without a narrowly tailored exemption, it 

will be exceedingly difficult to patrol the boundaries of the exemption, and to ascertain whether 

its invocation is purely a pretext for an economic rationale. 

The Bishops also claim that a failure to expand the refusal provision will result in hospital 

and social-services closures. Yet in California and New York, where a similar exemption is in 

operation, there is no evidence to suggest that religiously-affiliated institutions have closed or are 

offering diminished care. Indeed, some Catholic Universities, such as Loyola Marymount, 

apparentl~ offer contraception despite being permitted not to by virtue of a self-insurance 

loophole. I In light of the Bishops' implied threat that a key source of charity care for lowincome individuals might be at risk, it is important to note that, in fact, Catholic hospitals appear 

to provide less care to Medicaid patients and less charity care than hospitals under other forms of 

sponsorship.22 

The implied threat of religious hospital and social-services closures also rings hollow given 

the broad nature of responsibilities for compliance with the requirement under the proposed rule. 

The religious exemption proposed by HHS does not place the burden of compliance on any 

particular individual within the institutions regulated. Instead, the requirement rests with the 

institution as a whole. It begs credulity that the hostility to insurance coverage for contraception 

is so uniform across healthcare institutions the size and scope of hospital systems; and this notion 

appears particularly dubious in light of the data regarding religious adherents' widespread use of. 

and support for, contraception. 

D. Evidence Demonstrates Harm to Employees of Catholic Institutions from Denial of 

Coverage 

Research interviews conducted over the past year by the Center for Reproductive Rights 

underscore the hardships faced by employees at Catholic hospitals from denial of insurance 

coverage for contraception. At one hospital in Muskegon, Michigan, Hackley Hospital, that was 

acquired by a Catholic health system, Trinity Health, in 2008, employees told us of their dismay 

and distress when, without notice. contraceptive coverage was dropped for staff members and 

employees of affiliated medical practices. 

21 See Catholics for Choice, "Student Bodies: Reproductive Health Care at Catholic Universities" (2002), at 18; 

http://www.catholicsforchoice.orgltopicslhealthcare/documentsl2002studentbodies.pdf; Brochure, Aerna's health 

care coverage for Loyola Students, at 22; http://www.aernastudenthealth.comlschools/lmulhrochurellI2.pdf. 

22 Lois Uttley & Ronnie Pawelko, No Strings Attached: Public Funding of Religiously-Sponsored Hospitals in the 

United Slales, (2002), at 5. 

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All of the fonner Hackley employees the Center interviewed reported that the ban had a 

hannful impact on themselves and their colleagues. One nurse indicated that the out-of-pocket 

costs of penn anent contraception were prohibitive. (While costs vary by location, costs for tubal 

ligation generally range from $1500 to $6000.23) Another spoke of her difficult situation and the 

stress on her relationship: 

We are just praying I don't get pregnant until we can figure out how to get something. 

My doctor is Mercy-employed and he doesn't have samples .... I got pregnant twice on 

birth control. One was the Nuva Ring, the second was the minipill when my baby was 4 

and a half months old. I'm an OB nurse, so [know how to use birth control. Some 

patients like me need some fonn of penn anent birth control. ... My third pregnancy I lost 

twins .... I can't go through more. It's taken a toll on my marriage. 

Intra-uterine devices (IUDs) were also unaffordable for the employees we interviewed. In 

response, some nurses paid up to $40 per month for birth control pills or made a special trip to 

obtain them more cheaply elsewhere. Some hospital employees initially sought sliding scale 

services at the local Title X clinic, which closed in 2009. 

Even employees who had a history of pregnancy complications, high-risk pregnancies or a 

history of contraceptive failure could not obtain insurance coverage for contraception following 

the merger at Hackley Hospital. Moreover, medical conditions for which the use of oral 

contraceptives are recommended went untreated: One nurse had endometriosis, a medical 

indication for birth control pills, but still had to pay out-of-pocket for her pills. 

Every hospital employee we interviewed in this setting condemned the lack of coverage as an 

unwelcome intrusion by their new employer into a private healthcare decision. One employee 

noted, "All these other insurances [sic] paid for it. ... If! have health insurance, I should get 

birth control. ... Why should I have to follow what they believe?" 

III. The No-Copay-Contraception Requirement Does Not Violate the Constitution, Nor 

Is a Religious Exemption Required 

The Constitution does not require a religious exemption.24 Statements suggesting otherwise 

such as those of Bishop William E. Lori on behalf of the United States Conference of Catholic 

Bishops (the "Bishops"), as well as the Bishops' comments to HHS25 - are based upon a flawed 

understanding of both First Amendment and RFRA jurisprudence. 

A. The Constitution Permits Neutral, Generally Applicable Laws that May Burden 

Religious Exercise 

II YourContraception.com, Tubal Ligation, available at bttp:llwww.yourcontraception.convbinb-controlmethodsltubal-ligationltubal-ligation.html. " 

24 We note that the HHS 's justification for its proposed religious exemption is not grounded in either the 

Constitution or RFRA. Instead, HHS proposed the {eligious exemption as an attempted "accommodation" ortb. 

"religious beliefS of cenain religious employers." 76 Fed" Reg. at 46623. We agree with HHS's determination that 

nothing in the Constitution or federal law compels lin exemption from the n!HOopay-contraception requirement. 

"Comments orthe U"S" Conference of Catholic Bishops, Interim Final Rules on Preventive Services (CMS-9992-

IFC2) (submitted Aug. 31. 2011) ("Bishops' Comments'l 

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The Supreme Court has made it clear that neutral, generally applicable laws do not violate 

the Free Exercise Clause of the First Amendment, even if they burden the exercise of religion. In 

Employment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court 

rejected a challenge to a statute that denied unemployment benefits to drug users, including 

Native Americans who consumed sacramental peyote.26 Writing for the Court, Justice Scalia 

explained that under the Constitution/7 a neutral law of general applicability that happens to 

burden one's religious practice does not violate the Free Exercise Clause of the First 

Amendment: "[ t]he government's ability ... to carry out.. .aspects of public policy, 'cannot 

depend on measuring the effects of a governmental action on a religious objector's spiritual 

development. ... 28 The alternative, according to the Court, was to permit every religious objector 

to "become a law unto himself' 29 - a result which "contradicts both constitutional tradition and 

common sense."lO 

The Employment Division decision demonstrates that the Constitution permits the enactment 

of neutral laws that burden religion; it also makes it clear that no exemption or opt-out provision 

is required. As Justice Scalia wrote, the fact that a religious exemption "is permitted, or even that 

it is desirable, is not to say that it is constitutionally required ... ,,1 In other words, with respect to 

the Constitution, the question is not whether a religious exemption is required; it is whether a 

religious exemption is sensible.12 For the reasons set forth in this testimony, a religious 

exemption to the no-copay-contraception requirement is not "desirable." 

B. The No-Copay-Contraception Requirement is Neutral and Tberefore Constitutional 

After Employment Division, the only laws that remain constitutionally suspect are those 

based on anti-religious animus. According to the Court, laws targeting "acts or abstentions only 

when they are engaged in for religious reasons, or only because of the religious belief that they 

display" would be presumptively unconstitutional.1l Short of such animus, however, "neutral 

law[s] of general applicability,,14 are consonant with the First Amendment, regardless of the fact 

that they might burden individuals' religious exercise. 

The no-copay-contraception Requirement is a neutral rule that is part of a comprehensive 

effort to ensure that important preventive services for women are available and affordable. The 

critical role that contraception plays in preventing unintended pregnancy and promoting healthy 

birth spacing was articulated in the Institute of Medicine's comprehensive report, Clinical 

Preventive Services for Women: Closing the Gaps. And as the 10M report noted, "[n]umerous 

26 494 U.S. 872 (1990) (abrogated by statute). 

27 As examined below, Congress subsequently created a Sla/II/Ory - not constitutional - obligation for government to 

justiJY any substantial burden on religious exercise by demonstnlting a compelling state interesl. See Religious 

Freedom Restoration Ac~ 42 U.S.C. § 2000bb ef seq. 

"494 U.S. at 885 (citation omitted). 

" /d. at 885 (citation omitted). 

30 Jd. at 885. 

l! Jd. a1890. 

12 Jd. al 890. 

B Employment Division, 494 U.S. 872, at 877 (emphasis added). 

14 ld. at 879. 

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health care professional associations ... recommend the use of family planning services as part of 

preventive care for women," as described above. 

Nonetheless, comments submitted to HHS by the United States Conference of Catholic 

Bishops allege that the rOM's recommendation is nothing more than a "'religious gerrymander' 

that targets Catholicism for special disfavor sub silentio." This wholly unsupported allegation is 

absurd on its face, and it should be dismissed out-of-hand. There is not a shred of evidence to 

suggest that the Institute of Medicine's recommendations were based on anti-Catholic or antireligious animus. This unsupported and unsupportable claim is an insult to the countless doctors, 

researchers, and public-health experts who contributed to the 10M's conclusions and the 

rigorous scholarship upon which they rest. 

To bolster its outlandish claim, the Bishops' comment compares the no-copay-contraception 

requirement to a statute outlawing animal sacrifice, the subject of the Supreme Court's decision 

in Church of the Lukumi Babalu Aye. Inc. v. City ofHialeah.J5 rn that case, the City of Hialeah 

promulgated a thinly veiled ordinance designed to prohibit members of the Santeria religion 

from practicing the ritual slaughter of animals. The ordinance was preceded by various animusdriven resolutions, such as one condemning "any and all religious groups which are inconsistent 

with public morals, peace or safety;" another resolution noted "great concern regarding the 

possibility of public ritualistic animal sacrifices."J6 In light of these resolutions targeting Santeria 

religious rituals, and a number of other facts, the Court had no trouble determining that 

"suppression of the central element ofthe Santeria worship service was the object of the 

ordinances," and on that basis held that the ordinance was unconstitutional under the Free 

Exercise Clause. 

In contrast, the Bishops provide no proof whatsoever that the rOM panel was motivated by 

an anti-Catholic or anti-religious bias. Instead, the Bishops claim that the no-copay-contraception 

requirement "implicitly" targets Catholicism "by imposing burdens on conscience that are well 

known to fall almost entirely on observant Catholics.'']7 But Employment Division and Church of 

the Lukumi stand for the proposition that a party seeking to challenge a government action that 

burdens religious exercise must demonstrate that the law is not neutral. Merely saying that it is 

not neutral is not sufficient. And unlike in the case of the ordinance in Church of the Lukumi that 

plainly targeted Santeria practitioners, there is no evidence that the rOM intended to discriminate 

against Catholics, nor is there a history of actions by the 10M or HHS that demonstrate antireligious or anti-Catholic animus. 

Indeed, 10M took testimony from all members of the public wishing to present it, including 

representatives of religious organizations, who testified both in support of, and in opposition to, a 

requirement for contraception. HHS, in adopting the 10M's recommendations, has provided an 

unprompted (and, we believe, unnecessary) exemption from the requirement for religious 

employers, and solicited further comment on the rulemaking, thus inviting submissions regarding 

the views of religious institutions. Moreover, the legislative history on the Women's Health 

JS 508 U.S. 520 (1993). 

36 [d. at 526, 527. 

37 Comments of the United States Conference of Catholic Bishops, Interim Final Rules on Preventive Services, 

CMS-9992-IFC2. Aug. 31. 201 I. at 8. 

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Amendment is replete with information regarding the financial challenges women face in 

accessing preventive health services. Nothing in the record suggests even the slightest animus 

towards religious institutions. In sum, every decision maker, at every stage of the process, has 

acted with nothing less than civility and solicitude to produce an open and accountable process 

for decisions. Instead of targeting religious institutions, the 10M and HHS have consistently 

engaged religious institutions and sought out their views. 

In addition, we note that this rule also would fail to affect Catholics in a manner that is any 

different than the manner in which it affects the general population, underscoring the lack of 

animus towards religious practice or believers. Like everyone else, those religious adherents who 

decline to benefit from no-copay contraceptive coverage need not use it. Yet for the 98 percent 

of Catholic women who use contraception at essentially the same rate as the general population, 

the benefit will serve their interests as it does those of everyone.J8 Because it will actually 

provide a benefit to, rather than harm, an overwhelming majority of Catholics, the Bishops' 

argument that the law demonstrates an anti-Catholic animus must fail. 

IV. The No-Copay-Contraception RequIrement Does Not Violate the Religious Freedom 

Restoration Act, Nor is a Religious Exemption Required 

The Supreme Court has not vacillated on its understanding of the Free Exercise Clause, and it 

is clear that under the Constitution, the no-copay-contraception requirement is a permissible 

exercise of governmental authority. For its part, Congress responded to the Employment Division 

decision by enacting the Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1 et seq.) 

("RFRA"). RFRA explicitly reinstated the compelling-interest test for laws that burden religious 

exercise - the same test rejected in Employment Division.J9 Under RFRA, where the federal 

government40 seeks to "substantially burden" a person's exercise of religion, it must demonstrate 

that the application of the burden to the person-

(I) is in furtherance of a compelling governmental interest; and 

(2) is the least restrictive means of furthering that compelling governmental interest.41 

RFRA applies to all federal law and the implementation of that law, unless the law "explicitly 

excludes such application.'.42 

The no-copay-contraception requirement - even without a religious exemption - does not 

violate RFRA. First, the burden upon religious exercise is not "substantial," as required by the 

statute. And second, even if the burden were substantial, the government has sufficiently 

demonstrated a compelling interest in ensuring access to no-copay contraception, and has shown 

38 CENTERS FOR DISEASE CONTROL, NATIONAL SURVEY m' FAMILY GROWTH, NATIONAL HEALTH STATISTICS 

REPORT, SEXUAL BEHAVIOR, SEXUAL ATTRACTION, AND SEXUAL IDENTITY INTHE UNITED STATES: DATA FROM THE 

2006-2008 (Mar. 3, 2011) available at http://www.cdc.gav/nehsldatalnhsr/nhsr036.pdf. 

"42 U.S.C. § 2000bb(b)(I). 

40 RFRA was originally applicable to the States as well as the federal government. However, in City of Boerne v. 

Flores, 521 U.S. 507 (1997), the Supreme Court held that Congress lacked the staTUtory authority to apply RFRA to 

the States. It remains applicable to the federal government. 

41 42 U.S.C. § 20oobb-I(h). 

42 42 U.S.c. § 20oobb.3(h). 

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that a no-copay-contraception requirement is the least restrictive means of accomplishing that 

compelling goal. 

A. The Religious Freedom Restoration Act's Compelling-Interest Test is Inapplicable 

Because the No-Copay-Contraception Requirement Does Not "Substantially 

Burden" the "Exercise" of Religion 

1. Providing Preventive Healtb Services Witbout Cost Sharing Has Nothing to Do 

Wltb tbe "Exercise" of Religion 

RFRA's compelling-state-interest test only applies where the underlying government action 

places a substantial burden upon a person's "exercise" of religion. RFRA's "defmition" of the 

term, "exercise of religion," is entirely unhelpful; it defines the "exercise of religion" as "any 

exercise of religion, whether or not compelled by, or central to, a system of religious belief.'04] 

The Supreme Court, however, has held that the "exercise of religion" "often involves not only 

belief and profession but the performance of. •• physical acts [such as] assembling with others 

for a worship service [or] participating in sacramental use of bread and wine .. .'M 

The Bishops make no claim that unprotected sexual activity is central to, or even a part of, 

their worship or religious practice. In fact, health needs addressed by the requirement have no 

relation to any recognized religious practice, and therefore the Bishops' statements of their 

disapproval of contraception constitutes part of their religious beliefs, rather than an exercise of 

religion. 

The Bishops are also unable to point to any case in which the refusal to provide insurance 

coverage even on religious grounds - was considered to be a religious exercise, and, as 

described below, several State supreme courts have upheld similar contracer,tive-coverage 

requirements over objections by religious organizations on similar grounds. 5 

The belieU'exercise distinction is of paramount importance to the courts. And, indeed, 

virtually all cases upholding RFRA-based challenges have focused on the practice of religious 

worship, rather than abstract beliefs. The Supreme Court, for example, in Gonzales v. 0 Centro 

Espirita Beneficiente Uniao do Vegelal,46 upheld a RFRA-based challenge to the Controlled 

Substances Act, which prohibited members of a religious sect from imbibing hoasca, an 

hallucinogenic tea a "central" part of the sect's communion ritual. The lower courts have 

similarly focused on religious rituals when determining whether a practice constitutes a 

"religious exercise.'047 

43 42 U.S.C. § 2000cc-5(7). RFRA's definition of "exercise of religion" is the same as "religious exercise" in the 

Protection of Religious Exercise in Land Use and by Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc el 

seq . 

.. Cllller v. Wilkinson, 544 U.S. 709 (2005) (quoting Employment Division, 494 U.S. at 877) (emphasis added). 

4S Catholic Charities of the Diocese of Albany v. Serio, 859 N.E.2d 459 (N.V. 2006); Calholic Charities of 

Sacramento. Inc. v, Superior Court, 85 P.3d 67 (Cal. 2004). 

46 546 U.S. 418 (2006) . 

• ) See, e,g., Van Wyhe v, Reisch, 581 F.3d 639 (8th Cir. 2009) (inmate deprived of the use ofsukkah, a mandatory 

part of the Jewish "Sukkot" festival made a threshold showing of a burden upon "religious exercise"); ROllser v. 

White, 630 F. Supp, 2d 1165 (E.D. Cal. 2009) (prison's failure to hire a chaplain to attend to Wiccans' religious 

13 
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75050.056

What the Bishops seek is to deny access to needed health services in an effort to coerce 

employees into kowtowing to church dogma. While religious employers may urge and cajole 

others to obey religious proscriptions on sexual activity, they may not withhold needed health 

services from their employees to enforce their will. The very notion that the Bishops would hold 

their employees' health hostage flies in the face of the very definition of sexual health used by 

the Centers for Disease Control and the World Health Organization: 

Sexual health is a state of physical, emotional, mental and social well-being in 

relation to sexuality; it is not merely the absence of disease, dysfunction or 

infirmity. Sexual health requires a positive and respectful approach to sexuality 

and sexual relationships, as well as the possibility of having pleasurable and safe 

sexual experiences, free of coercion, discrimination and violence.48 

Moreover, it is clear that the mere availability of a benefit does no violence to their beliefs. 

Should the Bishops' arguments related to the undesirability of using contraception be accepted, 

those who accept them will not use the benefit. But those 98 percent of Catholics who use 

contraception should be entitled to make that choice for themselves, as a matter of their own 

beliefs and health. 

For this reason, it is critical that HHS not permit an exemption that would allow the Bishops 

or others to deny coverage for needed health services in an attempt to coerce behavior utterly 

unrelated to religious practice. 

2. Even ifthe No-Copay-Contraception Requirement Imposes a Burden on 

Religious Exercise, that Burden is Not "Substantial" 

RFRA imposes no restrictions whatsoever on government actions that burden religious 

exercise. Rather, it subjects government action to a "compelling interest" test only if the burden 

upon religious exercise is "substantial.,,49 Even assuming, arguendo, that the no-copaycontraception requirement did burden "religious exercise," the burden would be de minimus, or 

at most insubstantial. 

Religious employers (as well as non-religious ones) already cover health services to which 

they may, in principle, object. For example, existing Catholic employers' health insurance plans 

may cover maternity care for unwed mothers or HIV tests without regard to sexual orientation; 

existing Latter Day Saints employers' insurance may cover emergency services for injuries that 

happen to have been caused by reckless, alcohol-fueled behavior. 

In their comments to HHS, the Bishops attempt to bolster their claim that the religiousexercise burden is "substantial" by claiming that the no-copay-contraception requirement 

needs constituted a burden upon the exercise of religion); Henderson v. Ayers, 476 F. Supp. 2d 1168 (C.D. Cal. 

2007) (inmate prohibited from attending Friday Islamic prayer services stated a claim that his exercise of religion 

had been burdened) . 

•• Centers for Disease Control, Sexual Health, available at http://www.cdc.gov/sexualhealth (emphasis added). 

49 RPRA, 42 U.S.C. § 2000bb-1. 

14 
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interferes with church governance; that it compels speech; and that it compels unwanted 

association. Each of these three claims rings hollow. 

a. The No-Copay-Contraception Requirement Does Not Interfere With Church 

Governance 

The no-copay-contraception requirement does not interfere with church governance. The 

Bishops, in their comments, quote the Supreme Court's decision in Kedroffv. St. Nicholas 

Cathedral for the proposition that churches can "decide for themselves, free from state 

interference, matters of church government as well as those of faith and doctrine."so As a 

preliminary matter, Kedroffconcerned an intra-church dispute within the Russian Orthodox 

Church between those deferring to the head of the American branch and the Moscow-based 

church hierarchy. The dictum cited by the Bishops stands for the proposition that government 

should not weigh in on intra-church disputes, and is wholly irrelevant to the instant matter: 

promulgation of a neutral, generally applicable policy that affects all employers - whether 

secular or religious - equally. 

Moreover, the Bishops only selectively quote the Kedroffdecision. The very next sentence 

following the quotation above makes it even more obvious that the Court's admonition that 

government not interfere with church governance was strictly limited to internal church policies: 

"Freedom to select the clergy, where no improper methods of choice are proven, we think, must 

now be said to have federal constitutional protection as a part of the free exercise of religion 

against state interference." Indeed, the notion that government should not interfere in the inner 

workings of religious institutions is obvious and non-controversial. Thus, for example, courts 

presumptively avoid wading into religiously motivated hiring decisions: "it would surely be 

unconstitutional under the First Amendment to order the Catholic Church to reinstate, for 

example, a priest whose employment the Church had terminated on account of his 

excommunication based on a violation of core Catholic doctrine."ll 

Here, however, the proposed HHS rule is a neutral and generally applicable policy that 

requires all employers, including all religiously affiliated employers, to offer insurance coverage 

for certain preventive services, including contraception. There is no governmental intrusion upon 

the internal doctrinal workings of the church. The government is not mandating that women be 

ordained as priests. It is not determining the proper relationship between cardinals and bishops. 

In short, the no-copay-contraception requirement has nothing to do with church governance. 

50 344 U.S. 94,116 (1952). 

" Rweyemamu v. Cale, 520 F .3d 198, 205 (2d Cir. 2008). 

15 
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b. The No-Copay-Contraception Requirement Does Not Compel Speech 

The Bishops also contend that the no-copay-contraception requirement compels speech. The 

gist of this claim is that by requiring religious employers to cover contraception without cost 

sharing, the religious employers are being forced to communicate a pro-contraception message in 

violation of their beliefs. This argument is not credible, because nothing in the no-copaycontraception requirement requires the Catholic Church - or any religious institution - to 

articulate its support for the government policy. It must simply obey the law and provide the 

coverage. At the same time, religious institutions are free to speak out against contraception; 

priests may inveigh against birth control in sermons; churches may publish anti-contraception 

broadsides. They may even indicate to one and all that the extension of coverage for 

contraception is not the organization'S choice, but the result of a government requirement. 

The limited instances where the courts have found unconstitutional compelled speech are 

cases in which the speaker was forced to make a particular statement of belief. For example, the 

Supreme Court struck down as unconstitutional a law requiring motorists to display the motto, 

"Live Free or Die," on license plates.s2 Similarly, the state may not compel students to salute the 

flag or recite the Pledge of Allegiance.S

] But as the California Supreme Court held, "Catholic 

[organizations 'J compliance with a law regulating health care benefits is not speech.,,5' Indeed, 

the very idea that mere compliance with a law is compelled speech is absurd on its face. Thus, 

for example, a court dismissed as "ludicrous" a motorcyclist's claim that a compulsory-helmet 

law compelled speech in support of the law.ss 

c. The No-Copay-Contraception Requirement Does Not Force Believers to 

Associate 

The no-copay-contraception requirement does not violate religious organizations' freedom of 

association. The Bishops claim that including no-cost-sharing contraceptive coverage violates 

their "freedom of expressive association." For support, they cite two cases in which groups were 

permitted to exclude individull[s from their midst: a gay scoutmaster in the case of the Boy 

Scouts,56 and a gay and lesbian group in.the case of the St. Patrick's Day parade.s7 The Bishops 

try to analogize paying for an insurance benefit they disapprove of to being forced to include an 

unwanted individual in a group. 

Here, there is no unwanted association whatsoever. The law is not forcing the Bishops to 

allow atheists to become members, or to allow women to become ordained priests. Instead, the 

no-copay-contraception requirement merely requires religious employers to offer coverage to all 

employees already part of the organization or hired in the normal course of business. Because 

there is no forced association, the Bishops' claim must be rejected. 58 

"Wooley v. Maynard, 430 U.S. 705 (1977). 

"BoardofEduc. v. Barnelle, 319 U.s. 624 (1943). 

54 Catholic Charities of Sacramento. Inc. v, Superior Court, 85 P.3d 67 (Cal. 2004), 

" Buh! v, Hannigan, 16 Cal. App. 4th 1612, 1226 n. II (1993), 

" Boy Scouts of Am. v. Dale, 530 U.s. 640 (2000). 

51 Hurley v. Irish-American Gay. Lesbian & Bisexual Group, 515 U.S. 557 (1995). 

'-8 In addition, the Bishops' comments conveniently ignore the Supreme Court's most recent case about religion and 

expressive association - Christian Legal Society Chapter of the University afCalifornia. Hastings Col/ege of the 

16 
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B. The No-Copay-Contraception Requirement Furthers a Compelling Governmental 

Interest and Is the Least Restrictive Means of Furthering that Compelling Interest 

Under RFRA, the government is permitted to substantially burden a person's exercise of 

religion if: (J) it is in furtherance ofa compelling governmental interest; and (2) if the burden 

being challenged is the least restrictive means of furthering that compelling governmental 

interest. 59 Even if the no-copay-contraception requirement substantially burdened religious 

exercise - which it does not - it would still be a permissible governmental exercise of power 

underRFRA. 

1. The No-Copay-Contraception Requirement Furthers a Compelling 

Governmental Interest 

The no-copay-contraception requirement is permissible under RFRA because it furthers a 

compelling governmental interest in women's health; in children's health; in women's equality; 

in women's autonomy; and in the health and wellbeing of third parties. In other words, religious 

employers seek a religious exemption that would adversely affect a host of other actors -

women, children, and the families of those employed by religious organizations. The Bishops 

thus seek a religious exemption from a neutral law at the expense of third parties. But as the 

court observed in the California decision upholding a similar contraceptive-coverage 

requirement, "[w]e are unaware of any decision in which ... the United States Supreme 

Court ... has exempted a religious objector from the operation of a neutral, generally applicable 

law despite the recognition that the requested exemption would detrimentally affect the rights of 

third parties.'.6O 

a. The No-Copay-Contraception Requirement Furthers the Government's 

Compelling Interest in Women's Health 

It ought to be axiomatic to state that the government has a compelling interest in the health of 

its people, including women. For example, in Planned Parenthood v. Casey, the Supreme Court 

held that while the state has an interest in protecting post-viability fetal life, even that interest 

must give way to the more compelling interest in protecting a woman's health.61 Similarly, the 

Court struck down a law prohibiting so-called "partial birth abortions" as unconstitutional 

precisely because of the lack of "any exception 'for the preservation ofthe ... health of the 

mother. ".62 

Law v, Martinez, 130 S,C!. 2971 (2010), In that case, the Court held that a religious law-school club can be required 

to admit all-comers pursuant to a neub'al. non-discrimination policy_ There is no expressive association at stake with 

regard to the no-cop.y-contraception requirement; if there were, it would be pun;uantto a neutral, generally 

applicable policy (all employers must offer no-copay contraception), .nd thus be governed by Martinez rather than 

Dale or Hurley, neither of which involved the application of a neutral, non-discriminatory policy, 

59 RFRA, 42 U,S.C, § 2000bb-l(b)(I)-(2). 

60 Catholic Charities a/Sacramento v, Superior Court, 85 P.3d 67, 93 (2004). 

61 505 U,S, 833, 846 (1992) (plurality opinion), 

62 Stenberg v. Carhart, 530 U.S, 914, 930 (citation omitted), While the Supreme Court subsequently upheld a federal 

prohibition on so-called "partial birth abortions," it do so on the basis of congressional findings - to which the Court 

17 
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75050.060

These cases, and others, "unequivocally express the Supreme Court's view as to the state's 

compelling interest in preserving women's health.,,63 And the fact that the Bishops and other 

religious objectors seek special treatment at the expense of women only strengthens the 

government's interest. The California Supreme Court, for example, in reviewing claims 

regarding a similar law held, "[s]trongly enhancing the state's interest is the circwnstance that 

any exemption from the [contraceptive-coverage requirement] sacrifices the affected women's 

interest in receiving equitable treatment with respect to health benefits.''/;4 

The 10M panel fully explained why access to a full range of FDA-approved contraceptives is 

essential for women's health. In particular, women without access to safe and affordable 

contraceptives are more likely to experience unintended pregnancies, leading to a host of healthrelated complications. Reducing the numbers of pregnant women who suffer from health 

complications is a critically important state interest: the "United States Supreme Court has 

recognized that the state has a compelling interest in preserving the health of expectant 

mothers.',/;5 

b. The No-Copay-Contraception Requirement Furthers the Government's 

Compelling Interest in Improving Children's Health 

In addition, the 10M panel catalogued the numerous health problems that affect the 

development of children that result from unintended or improperly spaced pregnancies when 

those pregnancies are taken to term. Such children can experience low birth weight and 

developmental difficulties. It is obvious that the state has a compelling interest in ensuring the 

health ofthe nation's children, as the Supreme Court has stated directly: "[s]afeguarding the 

physical and psychological well-being ofa minor ... is a compelling [interest].,,66 

c. The No-Copay-Contraception Requirement Furthers the Government's 

Compelling Interest in Combating Sex-Based Inequality 

While promoting women's health was a primary motivation behind the no-copaycontraception requirement, it was also designed to help eliminate sex-based inequalities in the 

healthcare system - namely, the fact that women significantly outspend men on healthcarerelated services, in significant part due to costs associated with contraception and unintended 

pregnancies. And Congress has recognized that discrimination against women based on 

"prewancy, child-birth, or related medical conditions" constitutes discrimination on the basis of 

sex. 7 

deferred - that the procedure was '~never medically nc:cessaryH to protect a woman ~s health. Gonzales v. Carhart, 

550 V.S. 124, 141 (2007). 

" Simat Corp. v. Arizona Health Care Cost Containment Sys., 56 P.3d 28, 35 (Ariz. 2002). 

64 Catholic Charities of Sacramento, 85 P.3d a193 . 

• , Simat, 56 P.3d at 33-34 . 

.. Globe Newspaper Co. v. Superior Court for Norfolk Cly., 457 U.S. 596, 607 (1982), quoted in PJ ex rei. Jensen v. 

Wagner, 603 F.3d 1182, 1198 (lOth Cir. 2010) (holding that "slates have a compelling interest in and a solemn duty 

to protect the lives and health of the children within their borders."). 

67 Pregnancy Discrimination Act, 42 V.S.c. § 2000e(k). 

18 
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75050.061

Not surprisingly, the Women's Health Amendment, which added no-copay coverage of 

preventive services for women, was motivated by a desire to eliminate sex-based inequalities in 

healthcare spending. Senator Barbara Mikulski, the driving force behind the Women's Health 

Amendment, emphasized that "[ w ]omen of childbearing age incur 68 percent more out of pocket 

health care costs than men," and stated that "We [women] face gender discrimination.,,68 

Consequently, the elimination of sex-based discrepancies is a compelling state interest. For 

example, in Catholic Charities a/Sacramento v. Superior Court, the California Supreme Court 

held that a contraceptive-coverage statute "serves the compelling state interest of eliminating 

gender discrimination:,69 The discrimination the court referred to was the same fact pointed to 

by Senator Mikulski: "women during their reproductive years spent as much as 68 percent more 

than men in out-of-pocket health care costs, due in part to the cost of prescription contraceptives 

and the various costs of unintended pregnancies, including health risks, premature deliveries and 

increased neonatal care.,,70 The no-copay-contraception requirement was thus designed to 

address the state's compelling interest in eliminating the discriminatory impact of sex-based 

healthcare-spending inequalities. 

d. The Government Has a Compelling Interest In Promoting Women's 

Autonomy 

Access to affordable contraception is essential - unlike almost any other health service - in 

ensuring individuals' independence and autonomy. The Supreme Court has long held, for 

example, that laws prohibiting the use of contraceptives are an unconstitutional violation of the 

right to privacy.7! In so doing, the Court held that, "[i]fthe right of privacy means anything, it is 

the right of the individual, married or single, to be free from unwarranted governmental intrusion 

into matters so fundamentally affecting a person as the decision whether to bear or beget a 

child."n 

Because, by virtue of biology, only women can become pregnant, the importance of 

contraceptive access to women is particularly compelling. As Justice O'Connor explained, "[t]he 

ability of women to participate equally in the economic and social life of the Nation has been 

facilitated by their ability to control their reproductive lives:.13 Other courts have similarly noted 

the important role contraception plays in assuring women's equal participation as citizens: ''the 

adverse economic and social consequences of unintended pregnancies fall most harshly on 

women and interfere with their choice to participate fully and equally in the 'marketplace and the 

world of ideas.'"'' Consequently, the law recognizes women's special need for access to 

contraception: "the law is no longer blind to the fact that only women can get pregnant, bear 

os Senator Barbara Mikulski, Press Release: Mikulski Puts Women First in Health Care Debate (Nov. 30, 2009), 

available at http://mikulski.senate.govlmedialpressrelease/ll-30-2009-2.cfm . 

• , See Catholic Charities a/Sacramento v. Superior Court, 85 P.3d 67, 92 (Cal. 20(4). 

" Id at 92. 

71 See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (law prohibiting the use of contraceptives violates married 

couple's right to privacy); Eisenstadt v. Baird,405 U.s. 438 (1972) (law prohibiting the distribution of 

contraceptives to unmarried people violates the right to privacy), 

72 Eisenstadt, 405 U.S. at 453. 

" Planned Parenthood a/Southeastern Pennsylvania v. Casey, 505 U.S. 833, 856 (1992). 

"Erickson v. Bartell Drug Co., 141 F.Supp.2d 1266,1273 (W.D. Wash. 2001). 

19 
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75050.062

children, or use prescription contraception. The special or increased healthcare needs associated 

with a woman's unique sex-based characteristics must be met to the same extent, and on the 

same terms, as other healthcare needs.,,7l 

Under RFRA, the government must demonstrate a compelling interest to justify a substantial 

burden of religious exercise. But with respect to contraception, that burden is effectively 

neutralized, because the government would be required to simultaneously demonstrate a 

compelling interest in limiting access to contraception. The Supreme Court has held that 

"[r]egulations imposing a burden on a decision as fundamental as whether to bear or beget a 

child may be justified only by compelling state interests, and must be narrowly drawn to express 

only those interests.,,76 

As part of any consideration of broadening the exemption, the government must also weigh 

the resulting incursion on women's fundamental reproductive rights. Because "the Constitution 

places limits on a State's right to interfere with a person's most basic decisions about family and 

parenthood," and preserves the autonomy of decision making concerning the "private realm of 

family life which the state cannot enter,,,77 these interests are also acute. Only a rule preserving 

freedom of a choice of contraceptive and the accompanying insurance coverage fully respects the 

rights to privacy and decisional autonomy at the heart of this constitutional sphere. 

Indeed, we have amply demonstrated that the choice of health-plan coverage is ancillary to 

any reasonable definition of religious exercise, whereas access to contraception is a 

constitutionally protected right. The government cannot and should not allow third parties to 

interpose themselves and thereby interfere with employees' access to affordable contraception. 

e. The No-Copay-Contraception Requirement Furtbers tbe Government's 

Compelling Interest in Protecting tbe Interests of Tbird Parties 

The no-copay-contraception requirement, in addition to promoting women's and children's 

health and women's equality, also protects others. Pregnancy is a unique condition because it 

impacts other people - spouses and domestic partners, other children, and extended families. An 

unintended pregnancy affects the woman, her partner, and often her family in a qualitatively 

different way than other kinds of medical conditions. Consequently, any determination of the 

relevant state interest in the no-copay-contraception requirement must take into account not only 

the interests of women and children, but also of the women's partners and families. 

2. The No-Copay-Contraception Requirement is the Least Restrictive Means of 

Furthering the Government's Compelling Interest 

Not only does the no-copay-contraception requirement serve a compelling government 

interest; it is also the least restrictive means of furthering that interest. The system of ensuring 

751d at 127l. 

76 Carey v. PopUlation Services In/'J, 431 U.S. 678, 686 (1977). See also Casey, 505 U.S. at 851 ("Our law affords 

constitutional protection to personal decisions relating to marriage. procreation, contraception, family relationships, 

child rearing, and education"), quoting Carey, 431 U.S. at 685. 

77 Casey, 505 U.S. at 852 (quoling Prince v. Massachusetts, 321 U.s. 158 (\944». 

20 
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75050.063

coverage for preventive services for women is an essential part of the Affordable Care Act. As 

Senator Mikulski noted, "[alccess to preventive health care is essential for improving the health 

of our nation and bringing our health care costs back under control.,,7S This "essential" element 

of the Affordable Care Act cannot function if every religious objector is permitted to opt out of 

parts of the system: "[ilnsurance would basically become unworkable if everyone got a veto 

over what services any other member of the insurance pool could use.,,79 

In United States v. Lee, the Supreme Court denied a religious exemption to the socialsecurity sys tem, reasoning that "it would be difficult to accommodate the comprehensive social 

security system with myriad exceptions flying from a wide variety of religious beliefs."so Its 

holding recognized that any complex and all-encompassing system cannot function if every 

individual is permitted to opt out based on a religious qualm: "The tax system could not function 

if denominations were allowed to challen~e the tax system because tax payments were spent in a 

matter that violates their religious belief." I The "broad public interest" in maintaining a 

cohesive system "is of such a high order," the Court stated, that "religious belief in 

conflict. .. affords no basis for resist[ancel."s2 The Supreme Court has similarly held that 

religious foundations are not entitled to an exemption from the system of labor standards and 

must comply with minimum wage, overtime, and employment-related recordkeeping 

requirements.S3 

More recently, and in the context ofRFRA, the Supreme Court in Gonzales v. a Centro 

Espirita Beneficente Uniao do Vegetal held that "the Government can demonstrate a compelling 

interest in uniform application of a particular program by offering evidence that granting the 

requested religious accommodations would seriously compromise its ability to administer the 

program.',84 While in a Centro Espirita the Court permitted a religious exception to the 

Controlled Substances Act to allow a religious sect to use a hallucinogenic tea, the facts there 

were utterly different from those present here. For example, in a Centro Espirita, the 

government conceded that it did not have a compelling interest in enforcing the law, and the 

health impact at stake from permitting the very limited use of the tea was "in equipoise."s5 In 

contrast, with respect to the no-copay-contraception requirement, the government has a 

compelling interest and the health impact of permitting employers to opt out of providing 

contraceptive coverage without a copay for women is great. 

Other courts have similarly recognized in the context of RFRA that comprehensive systems 

admitting no exemptions are the least restrictive means of furthering compelling governmental 

7. Sen. Barbara Mikulski, Press Release: Mikulski, Senate Col/eagues Urge Secretary Sebelius 10 Swiftly Adopt 

10M's New Recommendations on Women's Preventive Health (July 22, 2011), available at 

http://mikulskLsenate.gov/medialpressreleasel7-22-20 11-6.cfm. 

7' Adam Sonfield, Senior Public Policy Associate, Guttmacher Institute, quoted in Lucia Rafanelli,lnaccurate 

Conceptions, AMERICAN SPECTATOR: THE SPECTACLE BLOG (Sept. 26, 20 I I), available at 

http://spectator.orgiblogl2011/09/26/inaccurate-conceptions. 

:~ 455 U.S. 252, 259-60 (1982). 

Id. at 260. 

81 Id. at 260. 

" Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985) . 

.. 546 U.S. 418, 435 (2006) 

" Id. at 426. 

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objectives. For example, in Jenkins v. Commissioner of Internal Revenue,86 the Second Circuit 

Court of Appeals noted that "It is ... well settled that RFRA does not afford a right to avoid 

payment of taxes for religious reasons" and consequently rejected the claim of a taxpayer 

challenginf on religious grounds the collection of a portion of his taxes to be used for military 

spending.8 Other courts have denied RFRA-based claims seeking exemptions to the Bald and 

Golden Eagle Protection Act,88 the Endangered Species Act, 89 and the Controlled Substances 

Act.9o Certainly the government's ability to enforce a comprehensive system to protect women's 

health is at least as important as one to prevent the trade in eagle feathers. 91 

V. International Human Rigbts Law Requires Governments to Ensure Access to 

Affordable Contraception and to Prevent Third Parties - Sucb as Employers - from 

Interfering Witb tbat Access 

A. International Human Rigbts Law Requires States to Ensure Access to Affordable 

Contraception 

Binding international human rights law recognizes women's fundamental right to access to 

contraception. For example, Article 3 of the International Covenant on Civil and Political Rights 

- to which the United States is a state party requires states to "ensure the equal right of men 

and women to the enjoyment of all civil and political rights set forth in the ... Covenant." The 

Human Rights Committee, the treaty-monitoring body charged with authoritatively interpreting 

the Convention, has specifically cited the "high cost of contraception" as a potential treaty 

violation.92 And only last year, the Human Rights Committee instructed a state party to 

"strengthen measures aimed at the prevention of unwanted pregnancies, by inter alia making a 

comprehensive range of contraceptives widely available at an affordable price and including 

them on the list of subsidized medicines. ,,93 

Other human rights instruments, all of which the United States has signed, similarly require 

affordable access to contraception. For example, the Convention on the Elimination of All Forms 

of Discrimination Against Women includes article 12, which requires states to "eliminate 

discrimination against women in the field of health care in order to ensure ... access to health care 

services, including those related to family planning. ,,94 The Committee on the Elimination of 

.. 483 F.3d 90 (2d Cir. 2007). 

" [d. at 92. See also Browne v. United States, 176 F.3d 25 (2d Cir. 1999) (RFRA does not prohibit the collection of 

revenue that will be used for purposes religious adherents find objectionable) . 

.. United States v. Vasquez-Ramos, 531 F.3d 987 (9th Cir. 2008) (denying RFRA claim where defendant sought. 

religious exemption to law prohibiting the possession of eagle feathers and talons). 

" United Slates v. Adeyemo, 624 F. Supp. 2d 1081 (N.D. Cal. 2008) (denying RFRA claim where defendant sought 

a religious exemption to a prohibition on the importation and transportation of leopard skins into the United States). 

'0 United Slares v. Lepp, No. CR 04-0317 MHP, 2007 WL 2669997 (N.D. Cal. 2007) (denying RFRA claim where 

defendant sought a religious exemption to the Controlled Substances Act). 

91 See Vasquez-Ramos, supra. 

92 Concluding Observations oJthe Human Rights Committee: Poland, U.N. Doc. CCPRlCO/82fPOL (2004), at rata. 9. 

, Concluding Observations oJthe Human Rights Committee: Poland, U.N. Doc. CCPRlCfPOUCO/6 (2010), at 

r.ara. 12. 

• G.A. res. 34/180, 34 U.N. GAOR Supp. (No.46) at 193, U.N. Doc. Al34/46, entered in/oforee Sept. 3,1981, at 

an. 12(1). 

22 
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75050.065

All Fonns of Discrimination Against Women, the treaty-monitoring body tasked with 

interpreting the Convention, has held that article 12 obligates states to "take measures to increase 

the access of women and adolescent girls to affordable health-care services, including 

reproductive health care, and to increase access to information and affordable means offamily 

planning .. . ,,95 

The Committee on Economic, Social and Cultural Rights, charged with monitoring the 

International Covenant on Economic, Social and Cultural Rights (another treaty the United 

States has signed) emphasized the importance of access to affordable contraception in its General 

Comment on the Right to the Highest Attainable Standard of Health. In order to fulfill their 

treaty obligations, states must endeavor to "provide access to a full range of high quality and 

affordable health care, including sexual and reproductive services ... "96 

B. International Human Rights Law Requires Governments to Protect Access to 

Contraceptive Service from Interference by Third Parties, Such as Employers 

Under international human rights law, the right to health - including the aforementioned right 

to access affordable contraception - must be respected, protected, and fulfilled by 

governments.97 A government meets its obligation to respect the right to health by not interfering 

with individuals' enjoyment of the right. And itfulftlls the right by affmnatively facilitating 

access to health-related services, including "sexual and reproductive health services.,,98 The nocopay-contraception requirement is a positive step towards respecting and protecting women's 

right to health, including reproductive health. 

However, under international human rights law, a government must also protect the right to 

health from interference: "States should also ensure that third parties do not limit people's 

access to health-related infonnation and services.,,99 This means that in order to abide by the 

United States' international commitments, it is not enough for the government to facilitate nocost-sharing access to contraceptives. Instead, the government must also ensure that third parties 

- such as religious employers are not pennitted to do what government may not, and interfere 

with individuals' right to access affordable contraception. Consequently, the proposed religious 

exemption, which allows private employers to impede individuals' right to access affordable 

contraception, violates international nonns and our commitments under the international human 

rights treaties that the United States has signed. 

VI. Any Religious Exemption to the No-Copay Contraception Requirement Must be 

Limited to Individuals Employed Specifically for Ministerial Duties 

"See, e.g., Concluding Observations of the CEDAWCommittee: Slovakia. U.N. Doc. CEDAW/C/SVK/CO/4 

(2008), at para. 22. 

'6 Commillee on Economic, Social and Cultural Righls, General Comment 14, The right to the highest attainahle 

standard of health (Twenty-second session, 2000), U.N. Doc. E/C.12/200014 (2000), reprinted in Compilation of 

General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. 

HR!lGENlllRev.6 at 85 (2003), at para. 21. 

97 [d. at para. 33. 

" [d. at para. 36. 

" {d. at para. 35. 

23 
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75050.066

For the reasons set forth above, the no-copay-contraception requirement - without any 

exemption - is both constitutional and permissible under RFRA. Any exemption Congress may 

contemplate should be strictly limited to employees in ministerial positions. too Thus, the 

proposed language in section 147.130 should be changed as follows: 

(a)(1 )(iv)(A) ) In developing the binding health plan coverage guidelines specified 

in this paragraph (a)(J)(iv), the Health Resources and Services Administration 

shall be informed by evidence and may establish exemptions from such guidelines 

with respect to group health plans established or maintained by religious 

employers and health insurance coverage provided in connection with group 

health plans established or maintained by religious employers with respect to any 

requirement to cover contraceptive services under such guidelines for those 

individuals emploved specifically for ministerial duties. 

This is a more narrow and targeted means of achieving the goal of balancing the consciencerights interests of insurers/employers/hospitals and employees/patients. 

A. Religious-Conscience Rights Belong to Individuals, Not Institutions 

As currently phrased, however, the proposed religious exemption protects the rights of 

religious employers at the expense of individual employees, giving houses of worship a de facto 

veto over the health coverage of their employees. But the Supreme Court has repeatedly 

emphasized that conscience rights inure to individuals, not institutions. For example, in 

McCreary County. Kentucky v. ACLU of Kentucky, the Court noted that "[t]he Framers and the 

citizens of their time intended ... to protect the integrity of individual conscience in religious 

matters ... "tOt Wallace v. Jaffee similarly held that "the Court has unambiguously concluded that 

the individual freedom of conscience protected by the First Amendment embraces the right to 

select any religious faith or none at all.,,102 And in Glickman v. Wileman Brothers & Elliott. Inc., 

the Court proclaimed that "at the 'heart of the First Amendment [is] the notion that an individual 

should be free to believe as he will, and that in a free society one's beliefs should be shaped by 

his mind and his conscience. ,,,103 

As written, the exemption proposed by HHS cedes to employers the religious conscience 

rights that rightfully belong to the employees. But individual employees - and not their employer 

- should have the religious conscience right to decide whether they wish to receive co-copay 

coverage for contraception. The draft exemption, however, permits a religious institution to 

trample upon the religious beliefs of their employees - whether or not they agree with those 

views, and whether or not they are even members of the same religious group. For example, a 

Methodist groundskeeper employed by a Catholic parish will be unable to access no-copay 

contraception - regardless of her own conscience or religious beliefs - by virtue of happening to 

100 We use the tenn "ministerial position" here to refer to those hired to perfonn exclusively or almost exclusively 

religious functions as part of the house-of-worship's religious hierarchy, such as priests, rabbis. nuns, or imams. We 

do not endorse the broader meaning of the tenn that has been used by some of the lower courts, which have 

incorrectly broadened the tenn to include music directors, teachers at religiously affiliated colleges, and the like. 101 545 U.S. 844. 876 (2005) (emphasis added). 102 472 U.S. 38, 53 (1985) (emphasis added). 

10J 521 U.S. 457, 472 (1997) (emphasis added). 

24 
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75050.067

work for a church. The fact that the groundskeeper does not share the religious beliefs of the 

church 104 and engages in no religious duties whatsoever - and indeed, that she performs an 

essentially secular function - is of no moment. Under the interim rule, the church, as her 

employer, can dictate to her which health benefits she can access. Indeed, the logic underlying 

the interim rule would also allow a church to deny neonatal benefits to a mother whose child was 

born out of wedlock; 101 or to all male employees; 106 or to gay or lesbian employees. 107 And 

Christian Scientist churches would be entitled to deny all medical coverage except spiritual 

care. 108 

B. Religious Exemptions Should Be Limited to Employees Employed SpecificaUy for 

Ministerial Duties 

Any religious exemption to the no-copay-contraception requirement should be limited to 

religious-institution employees hired to perform ministerial duties, such as rabbis, priests, or 

imams. These employees are hired specifically because of their religious beliefs and leadership 

of the religious institution and have specifically volunteered for such designation. The Fifth 

Circuit Court of Appeals noted, for example, that "[t]he relationship between an organized 

church and its ministers is its lifeblood. The minister is the chief instrument by which the church 

seeks to fulfill its purpose.,,109 Similarly, the Fourth Circuit Court of Appeals recognized that 

"[t]he right to choose ministers ... underlies the wellbeing ofa religious community ... for 

perpetuation of a church's existence may depend upon those whom it selects to preach its values, 

teach its message, and interpret its doctrine both to its own membership and to the world at 

large.,,110 

Because ministers are selected precisely because of their religious beliefs and leadership, 

offering them an exemption is a permissible - though unrequired - accommodation of religion. 

But other employees of religious institutions - be they secretaries, groundskeepcrs, or 

receptionists - are not the "lifeblood" of a house of worship; nor does a house of worship depend 

upon such non-ministerial employees to "preach its values, teach its message, and interpret its 

doctrine." Because non-ministerial employees are not hired because of their religious beliefs and 

leadership, they oUght not to be held hostage to the religious employers' religious dogma and 

denied a health benefit generally available to everyone else. 

104 Although the interim rule limits its applicability to organizations that "primllrily employ[] persons who share 

[their] religious tenets," (emphasis added) it is clear that religious instirutions would be exempt from providing n<>-

copay contraception to any non-believers who work there. 

'0' Numerous religions, including Roman Catholicism, disapprove of sexual relations outside of marriage. 

'0' See, e.g., Re-Formed Congregation of the Goddess, [ntemational, RCG-1 Membership, available at 

http://www.rcgi.orglmembers/members.asp (congregation only permits women to become full members). 

107 Numerous religions disapprove of homosexuality. 

10. I,est this sound like hyperbole, see Fox 13now.com, Should State Health Exchanges Pay for Spiritual Care, Sept. 

25, 201 I, available at http://www.fox13now.comlnewslkstu-spiritual-care-sbould-state-health-exchanges-pay-forspiritual-care-20110925,O,5284457.story (Utah's Legislative Health Care Reform Task Force discussed proposals to 

permit insurance coverage for 'spiritual care· ... "[t]he legislature heard personal stories [from the] Christian 

Science ... a church[, which] belicves spiritual care should replace medical care."). 

10' McClure v. Salvalion Army, 460 F.2d 553, 558-59 (5th Cir. 1972). 

110 Rayburn v. General Conference of Seve nth-Day Adventists, 772 F.Zd 1164, 1167-68 (4th Cir. 1985). 

25 
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VII. Otber Key Protections Would Be Required If tbe Exemption is Maintained or 

Expanded, Including a Mecbanism to Allow Affected Employees to Obtain NoCopay Contraceptive Coverage 

As the above history indicates, if Congress decides to maintain or expand the proposed 

exemption, it must establish a robust and clear set of protections for women's health. For 

example: I) Congress should exclude from any exemption contraception prescribed for a medical 

purpose unrelated to birth control; 2) employees subjected to an employer exemption should be 

allowed to otherwise obtain contraceptive coverage free of cost through a state or federal 

program for an extension of coverage; 3) employees should be given appropriate advance notice 

of the employer's exemption and the resulting absence of coverage and provided at the same 

time with information required to obtain coverage elsewhere; and 4) employers should be 

required to certifY that they comply with each of the exemption's requirements and this 

documentation should be submitted to the Department of Health and Human Services. 

The distinct autonomy and privacy interests that individuals have in accessing family 

planning services and in reproductive health require a system in which individuals denied 

contraceptive coverage due to the religious exemption are provided with an alternative means to 

obtain contraceptive coverage. Such coverage could be offered through a federally mandated 

insurance supplement or through a special program in the Exchanges. Without such a 

mechanism, the religious beliefs or consciences of the many individuals who are employed at 

houses of worship will be trampled upon by their employers' decision to seek an exemption. 

Consistent with privacy safeguards, Congress should require HHS to publish annually data 

on the extent to which exemptions have been allowed from the rule, the number of policyholders 

impacted by the exemption by state, the mechanisms by which these policyholders have been 

offered contraceptive coverage from another source, and any monitoring and enforcement 

activity related to the exemption or certification of exemption. 

VIII. Conclusion 

Any policy proposal concerning individuals' right of conscience must proceed from the 

understanding that all individuals' consciences must be protected. That includes individual 

employers and doctors who object to contraception - but also employees, patients, and doctors 

who do not object to it. The religious exemption proposed by HHS protects the conscience rights 

of the church hierarchy at the expense of employees, including non-ministerial employees who 

may not share the church's dogmatic view of contraception. 

The proposed insurance- and care-refusal bill- H.R. 1179 - goes light-years beyond the 

HHS proposal and permits insurers, employers, and hospital administrators to impose their 

beliefs on policyholders, employees, and patients. It privileges the conscience rights of the 1% 

who disavow contraception at the expense of the 99% of American women including 98% of 

Catholics - who do use contraception. 

Finally, a religious exemption is required by neither the Constitution nor the Religious 

Freedom Restoration Act. Promulgating a broad religious exemption that trammels upon the 

26 
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rights of the 99% of women who use contraception is bad policy -- undennining the goals of the 

no-copay-contraception to improve the health of women and children, and reducing America's 

astronomical unintended pregnancy mte. Congress should implement policies motivated by 

public health and science - not dictated by theology or religious dogma. 

With questions, please contact Laura MacCleery, Director of Government Relations, at (202) 

629-2658 or Amm Schvey, Policy Counsel, at (202) 629-2657. 

27 
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Testimony of Judy Waxman, Vice President for Health and Reproductive Rights 

National Women's Law Center 

House Committee on Energy and Commerce, Subcommittee on Health 

Hearing on the Affordable Care Act's Contraceptive Coverage Guarantee 

November 2, 2011 

Mr. Chainnan and Members of the Committee: 

1 am Judy Waxman, Vice President of Health and Reproductive Rights at the National Women's 

Law Center. Since 1972, the National Women's Law Center has worked to protect and advance 

the progress of women and their families in core aspects of their lives, with an emphasis on the 

needs oflow-income women. The Center utilizes a wide range of tools-including public policy 

research, monitoring, and analysis; litigation, advocacy, and coalition-building; and public 

education-to achieve gains for women and their families, including to protect and advance 

women's reproductive health and rights. Thank you for the opportunity to submit 

testimony today. 

One of the Affordable Care Act's key protections is the guarantee that all new insurance plans 

will cover preventive services, including counseling, screenings, and interventions that have 

received either "A" or "8" recommendations from the United States Preventive Services Task 

Force. l The Women's Health Amendment, enacted because Congress recognized that these 

recommendations left some important gaps in preventive care for women,2 required the 

Department of Health and Human Services (HHS) to identify additional preventive health 

services for women that should be covered and provided to patients at no cost. The Institute of 

Medicine (laM) reviewed the available evidence and recommended additional women's 

preventive health services that should be included in the required coverage of preventive health 

services without cost- sharing. 

The 10M released its findings on July 19, 2011, recommending coverage and no cost-sharing for 

a range of important women's preventive health services including screening for cervical cancer; 

critical health services for pregnant women, including breastfeeding support; screening for 

intimate partner violence; and all FDA-approved fonns of contraception.] HHS adopted the 

10M's recommendations on August 1,2011. Unfortunately, HHS has included in its Interim 

Final Rules (lFR) a provision that would allow certain religious employers to exclude 

contraceptive services from their employees' health plans. Rather than giving all women true 

contraceptive access, the exemption arbitrarily precludes certain women from receiving needed 

preventive care. Women who work for employers who invoke an exemption will not receive the 

intended benefits, and will be required to pay for what the 10M and HHS itself have determined 

should be available at no cost. 
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No cost-sharing contraceptive coverage provides tremendous benefits for women. Contraception 

is critical preventive health care for women. Contraceptive use is nearly universal among women 

of reproductive age in the United States.4 Planned pregnancies-which for most women require 

contraception-improve women's health and their ability to have healthy pregnancies. The 

ability to determine the timing of a pregnancy can prevent a range of pregnancy complications 

that can endanger a woman's health, including gestational diabetes, high blood pressure, and 

placental problems, among others.5 Contraception is critical to helping women achieve healthy 

pregnancies. Women who wait for some time after delivery before conceiving their next child 

lower their risk of adverse perinatal outcomes, including low birth weight, preterm birth, and 

small-for-size gestational age. 6 Guaranteeing access to contraception therefore benefits the health 

of women and their families. 

Cost plays a major role in women's ability to use contraceptives. Contraception costs burden 

women's access to birth control. Evidence suggests that even moderate co-payments can cause 

individuals to forgo needed preventive care, particularly those with low and moderate incomes. 

For example, a survey by Planned Parenthood found that one in three women reported struggling 

with the cost of prescription birth control at some point.7 Another survey. conducted by the 

Guttmacher Institute in 2009, found that because of the economic recession, 23% of women 

reported having difficulty paying for birth control and 24% put off a gynecology or birth control 

visit because of cost. 8 Costs can also lead women to use contraception inconsistently or 

incorrectly; for example, 18% of women report inconsistent use as a means of saving money. 

Removing these barriers to access is critical for improving women's health. 

HHS's decision to guarantee no cost-sharing coverage of contraception is a milestone for 

women. Removing these cost-related barriers is a tremendous benefit for women and their 

families and underscores the real and tangible impact the new health care law will have on 

women's lives. 

Nothing in the Women's Health Amendment requires any person to use contraception. The 

requirement is merely that contraceptive services be covered in insurance plans at no costsharing, such that individuals may choose whether or not to access those services. Senator 

Barbara Mikulski, the author of the Women's Health Amendment, put it well when explaining 

the purpose of the provision on the Senate floor: "[Wle do not mandate that you have the service; 

we mandate that you have access to the service. The decision as to whether you should get it 

will be a private one, unique to you." 

Requiring employers-including religious employers-to cover contraceptives does not break 

any new legal ground. In fact, states have long guaranteed contraceptive coverage. Twenty 

eight states have laws and policies that guarantee health insurance coverage of prescription 

contraceptives in insurance policies that cover other prescription drugs and devices.9 The first of 

these laws was enacted in 1998; the most recent in 2010. Eight states have no religious 

exemption. 

In addition to these state laws and policies, Title VII of the Civil Rights Act of 1964 requires 

employers with fifteen or more employees to provide coverage of contraception if the employee 

health insurance plan covers other preventive drugs and services. In December 2000, the EEOC 
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issued a Commission Ruling stating that it is sex discrimination for employer-sponsored health 

insurance plans to provide coverage of other prescription drugs and preventive services but fail 

to provide coverage of contraceptives. This guidance has remained in place throughout the Bush 

Administration to this day. Title VII contains no provision allowing employers, religious or 

otherwise, to discriminate against their employees in payor benefits. Moreover, many 

religiously-affiliated employers already provide contraceptive coverage. The National Women's 

Law Center has identified a number of religiously-affiliated employers that cover contraception 

in the health insurance policies they offer to their employees. 

An exemption that allows religious employers to refuse to comply with the contraceptive 

coverage guarantee has no basis under the law. The Affordable Care Act does not allow for any 

exemptions that discriminate against women. Section 1557(a) of the Affordable Care Act 

prohibits sex discrimination in any health program or activity, any part of which is receiving 

Federal financial assistance. As described above, it has been determined that it is sex 

discrimination to exclude coverage of contraception for women when the employee health 

insurance plan covers other preventive drugs and services. 10 It is unacceptable-as a matter of 

law and policy-for an agency to create an exception to longstanding civil rights principles that 

allow religious employers not to comply with the law. 

Contrary to the assertion of some who oppose the contraceptive coverage provision, the 

Constitution does not require a religious exemption. The Supreme Court has held that neutral, 

generally applicable laws do not violate the Free Exercise Clause of the First Amendment, even 

if they were to burden the exercise of religion. I I The coverage of contraception is a neutral 

regulation that applies to all employers; it does not single out any religious entity or practice. 

Accordingly, guaranteeing contraception coverage does not violate the First Amendment. 

I Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (2010), amended by Health Care and Education 

Affordability and Reconciliation Act, Pub. L. No. 111-152 (2010) (to be codified at42 U.S.C. § 18023). 

1 Public Health Service Act, Pub. L. No. 78-410 (1944), amended by Patient Protection and Affordable Care Act, 

Pub. L. No. 111-148, § 1001 (2010) (to be codified al42 U.S.c. § 18023). 

, Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011), ~vailable at 

http://www.iom.edulReportsl2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx. 

• Rachel Jones & Joerg Dreweke, Countering Conventional Wisdom: New Evidence on Religion and Contraceptive 

J.!g 4 (Apr. 2011), available at, http://www.guttrnaeher.orgipubslReligion-and-Contraceptive-Use.pdf. 

s March of Dimes, Pregnancy After 35 (May 2009), http://www.marchofdimes.comiPrcgnancy/tryinLafter35.btrnl. 

• U.S. Dep't of Health and Human Servs., Healthy People 2010 9-32 (2nd ed. 2000), available at 

bttp:llwww.healthypeople.gov!Documentlpd£IVolumcl/09Family.pdf. 

7 Planned Parenthood, Survey: Nearly Three in Four Voters in America Support Fully Covering Prescription Birth 

Control, (Oct. 2010), available at http://www.plannedparenthood.orglabout-uslnewsroomlpress-releaseslsurveynearly-three-four-voters-america-support-fully-covering-prescription-birth-control-33863 .hlm. 

S Guttmacher Institute, A Real Time Look at the Impact of the Recession on Women's Family Planning and 

Pregnancy Decisions, (Sept 2(09), available at http://www.guttrnacher.orgipubslRecessionFP.pdf. 

9 In addition to the states that have enacted laws, Michigan and Montana also require contraceptive coverage. 

Michigan's requirement is based on an Administrative ruling, while Montana's requirement is based on an Attorney 

Geneml opinion. 

10 See EEOC Guidance, adopted December 14, 2000. 

II See, e.g., Employment Division, Department o/Human Resources o/Oregon v. Smith, 494 U.S. 872 (1990) 

(abrogated by statute). 
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75050.073

AMERICAN CIVIL LIBERTIES UNION 

Written Statement of the American Civil Liberties Union 

Laura W. Murphy 

Director, Washington Legislative Office 

Sarah Lipton-Lubet 

Policy Counsel 

Submitted to the House of Representatives 

Subcommittee on Health 

Committee on Energy and Commerce 

November 2, 2011 

"Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" 
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75050.074

The American Civil Liberties Union ("ACLU") thanks the Committee on Energy and 

Commerce, Subcommittee on Health for the opportunity to submit this statement for the hearing 

record - "Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" -

addressing the Department of Health and Human Services ("HHS") requirement that new health 

plans cover contraception without extra out of pocket costs. 

The ACLU is a nonpartisan public interest organization with more than a half million 

members, countless additional activists and supporters, and 53 affiliates nationwide, dedicated to 

protecting the principles of freedom and equality set forth in the Constitution and in our nation's 

civil rights laws. The ACLU has a long history of defending both religious liberty and 

reproductive freedom. In Congress and in the courts, we have supported legislation providing 

stronger protection for religious exercise. At the same time, we have participated in nearly every 

critical case concerning reproductive rights to reach the Supreme Court, and we routinely 

advocate in Congress and state legislatures for policies that promote access to reproductive 

health care. Because of our profound respect for both religious liberty and for reproductive 

rights, the ACLU is particularly well-positioned to comment on the issues before this 

Subcommittee. 

Sexually active individuals should have affordable access to the full range of 

contraceptive options. Women need access to contraception to prevent unintended pregnancies, 

plan the size of their families, plan their lives, and protect their health. Meaningful access to 

contraception is integral to a world in which people are free to express their sexuality, to fonn 

intimate relationships, to lead healthy sexual lives, to flourish, and to decide when and whether 

to have children. 

Although some have expressed concern about the impact on institutions that oppose the 

use of birth control,' religious liberty is not infringed by requiring insurance plans to cover 

contraception. The religious beliefs of those who employ and serve diverse populations no more 

justify denying employees contraceptive coverage than they did denying African-Americans 

service at restaurants owned by those whose religious beliefs opposed desegregation. 

Religious liberty does not come with the right to impose one's faith on others. Indeed, 

the contraceptive coverage provision serves the nation's interest in gender equality, reproductive 

autonomy, and religious freedom by making contraception accessible and affordable, and 

therefore allowing women - using their own consciences - to choose for themselves whether, 

when, and how to use birth control. 

I See, e.g., Internal Memorandum from MajorityStalf ofComm. on Energy and Commerce to Members of the 

Subcomm. On Health (Oct. 28, 2011), available at 

http://Republicans.EnergyCommerce.house.gov/Mediaifi Ie/HearingsfHealthill 0211 fMemo.pdf. 

liP age 
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Calls to expand the religious employer exception in the HHS rule or pass radical bills like 

H.R. 1179, the Respect for Rights of Conscience Act of2011, must be rejected. Each time more 

entities are allowed to deny women contraceptive coverage, the religious beliefs of some are 

imposed on the lives of others, and gender equality is undermined. 

I. Background 

The Patient Protection and Affordable Care Act ("ACA") provides that certain preventive 

services must be provided in health insurance plans without cost-sharing.2 The preventive 

services provision is designed to ensure that health insurance provides real access to vital health 

care. Because existing preventive care guidelines otherwise incorporated into the ACA have 

significant gaps when it comes to women's health, Congress included the Women's Health 

Amendment ("WHA"), which requires health insurance plans to cover additional preventive 

services for women,] as described in comprehensive guidelines supported by the Health 

Resources and Services Administration (HRSA).4 

To implement the WHA, the Institute of Medicine ("10M") "review[ed] what preventive 

services are necessary for women's health and well-being"S and developed recommendations for 

comprehensive guidelines. After an extensive science-based process, the 10M published 

Clinical Preventive Services for Women: Closing the Gaps, a report of its analysis and 

recommendations, on July 19,2011. Among other things, the report recommended that the 

HRSA guidelines include "the full range of Food and Drug Administration-approved 

contraceptive methods, sterilization procedures, and patient education and counseling for all 

women with reproductive capacity.,,6 On August 1,2011, HRSA adopted the JOM's 

recommendations, including the recommendation on contraceptive services.' 

2 Patient Protection and Affordable Care Act ("ACA"), Pub. L. No. 111-148, sec. 1001, § 2713(.), 124 Stat. 131 

(2010). 

, See, e.g., 155 CONGo REc. S12019, 12025 (daily ed. Dec. 1,2009) (statement of Sen. Boxer) ("The underlying bill 

introduced by Senator Reid already requires that preventive services recommended by the U.S. Preventive Services 

Task Force be covered at little to no cost .... But [those recommendations] do not include certain recommendations 

that many women's health advocates and medical professionals believe are critically important .... "); see also 155 

CONGo REc. S 12261, SI2271 (daily cd. Dec. 3, 2009) (statement of Sen. Franken) (,'The current bill relies solely on 

the U.S. Preventive Services Task Force to determine which services will be covered at no cost. The problem is, 

several crucial women's health services are omitted, [The Women's Health] amendment doses the gap:'). 

• ACA, Pub. L. No. 111-148, sec. 1001, § 2713(a)(4), 124 Stat. 131. 

1 INSTITlJfE OF MEDICINE ("10M"), CLINICAL PruiVENrIVE SERVICES FOR WOMEN: CLOSING TIlE GAPS 1 

(prepublication cd.) (20 II) [hereinafter CLOSING Tll.E GAPs]. 

'/d. at 94. 

1 Health Resources and Services Administration, U.S. Dep't of Health & Human Services. Women's Preventive 

Services: Required Health Plan Coverage Guidelines http://www.hrsa.gov/womensguidelinesl. 

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Also on August I, HHS promulgated amendments to the interim final regulation 

implementing the preventive services provision, creating an exception to the HRSA Guidelines' 

contraceptive coverage requirement. The rule allows HRSA to "establish exemptions from such 

guidelines with respect to group health plans established or maintained by religious employers 

and health insurance coverage provided in connection with group health plans established or 

maintained by religious employers with respect to any requirement to cover contraceptive 

services under such guidelines."g HHS explained that its purpose in creating this exception was 

to "provide for a religious accommodation that respects the unique relationship between a house 

of worship and its employees in ministerial positions," while extending contraceptive coverage 

to "as many women as possible:,9 The definition of religious employer in the rule tracks the 

defInition of the exempted entities in contraceptive equity laws in California and New York, 

each of which has been upheld against challenges arguing for expansion. 10 

II. Contraceptive Coverage is Essential for Women's Health and Equality 

Access to safe and effective contraception is a critical component of basic health care for 

women. Virtually all sexually active women use contraception over the course of their lives. I I 

Since 1965, when the U.S. Supreme Court first protected a woman's access to contraception,12 

maternal and infant mortality rates have declined. 13 Without contraception, women have more 

unplanned pregnancies and are less likely to obtain adequate prenatal care in a timely manner. 14 

Controlling pregnancy spacing affects birth outcomes such as low birth-weight and premature 

birth. Pregnancy planning can also help women control a number of conditions that negatively 

impact their health, such as gestational diabetes and high blood pressure. I 5 

• Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient 

Protection and Affordable Care Act, 76 Fed. Reg. 46,621. 46.626 (Aug. 3.201 I) (to be codified at 45 C.F.R. pt. 

147). 

, Id. 0146,623. 

10 See Catholic Charities of Sacramento. Inc. v. Super. Ct., 85 P.3d 67 (Cal. 2004); Catholic Charities of Diocese of 

Albany v. Serio, 859 N.E.2d 459 (NY 2006). 

\I Guttmacher Institute, Testimony before the CoTTlmittee on Preventive Services for Women, Institute of Medicine 7 

(Jan. 12,2011) [hereinafter Guttmacher Institute Testimony]. 

"Griswoldv. Conn., 381 U.S. 479 (I965). ,. 

IJ See Centers for Disease Control and Prevention C'CDC"), Ten Greatest Public Health Achievements United 

States. /990-1999, Family Planning, MORBlDrrv AND MORTALITY WEEKLY REPORT 242 (April 2. 1999). available 

at http.llwww.cdc.goy/mmwr/PDFlwklmm4812.pdf(accesstotamilyplanninghasledto··fewerinlllnt.child. and 

maternal deaths"); see also U.S. DEP'TOF HEALTH & HUMAN SERVS., HEALTH, UNITED STATES, 01222 (2006); U.S. 

DEP'T OF HEALTII& HUMAN SERVS., VrrAL AND HEALTH STATISTICS' TRENDS IN INFANT MORTALITY BY CAUSE OF 

DEATII AND OTHER CIIARACfERISTlCS, 1960-88, at 3 (l993). 

14 Adam Son field, The Case for Insurance Coverage of Contraceptive Services and Supplies Without Cost-Sharing, 

14 GIJITMACHER POL'y REv. 7-8 (Winter 2011), available at 

http://www.guttmacher.orgipubslgpr/14/l1gprI40107.pdf. 

" See, e.g., March of Dimes, Pregnancy After 35 (May 2009), http://www.marchofdimes.comitryinlLafter35.html. 

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Access to contraception gives women control of their fertility, enabling them to decide 

whether and when to become a parent. Contraception not only furthers the health of women and 

their children but equality as well, allowing women to make educational and employment 

choices that benefit themselves and their families. It is imperative that the benefits of access to 

birth control reach all women. 

Contraception has an important role in women's preventive care beyond preventing 

unintended pregnancies. As the 10M noted in its report, "[I]ong-term use of oral contraceptives 

has been shown to reduce a woman's risk of endometrial cancer, as well as protect against pelvic 

inflammatory disease and some benign breast diseases:,16 Contraception can also decrease the 

risk of ovarian cancer and eliminate menopause symptoms. 17 

The HRSA Guidelines' contraceptive coverage requirement is based on decades of 

experience with the benefits of family planning, recognized by the Centers for Disease Control 

and Prevention as one of the ten most significant public health achievements of the 20th 

centuryY In addition to the 10M, "[ n ]umerous health care professional associations and other 

organizations recommend the use of family planning services as part of preventive care for 

women.,,19 Multiple federal programs promote contraception access.20 

The Women's Health Amendment, through the HRSA Guidelines, also builds on a 

network of state contraceptive coverage laws. Twenty-eight states require health plans that 

include prescription drug coverage to cover contraception. These laws were passed in response 

to decades of gender discrimination in the provision of health insurance; without contraceptive 

coverage mandates, women routinely pay more than men for their health care. Similarly, the 

Equal Employment Opportunity Commission has made clear that Title VII of the Civil Rights 

Act of 1964, which prohibits discrimination in employment on the basis of sex, requires 

employers to provide contraceptive coverage when they offer coverage for comparable drugs and 

devices. 21 

16 CLOSING 11IE GAPS, supra note 5, at 92. 

17 Guumacher Institute Testimony, supra note 11, at 6; Dep't of Health & Human Servs., Menopause Symptom 

Relief and Treatments, Sept 29. 2010, http://www.womenshealth.gov/menopause!symptom-relief-treattnentl. 

" CDC, supra note 13, at 241. 

19 CLOSING THE GAPS, supra note 5, at 93 (including ·'the American College of Obstetricians and Gynecologists, the 

American Academy of Family Physicians, the American Academy of Pediatrics, the Society of Adolescent 

Medicine, the American Medical Association. the American Public Health Association, the Association of Women's 

Health, Obstetric and Neonatal Nurses, and the March of Dimes"). 

20 See, e.g., Susan. A. Cohen, The Numbers Tell the Story: The Reach and Impact afTille X, 14 GUTfMACHER PoL'Y 

REv. I (2011), available at http://www.guttmacher.org/pubslgpr/14/21gprI40220.pdf; Rachel Benson Gold & Adam 

Sonfield. Block Grants Are Key Sources ofSupponfar Family Planning, 2 GUll'MACHER REpORT ON PuB, POL'y 

(1999), available at hUp:llwww.guttmacher.org/pubsltgr/02/4/grQ20406.pdf. 

" Equal Employment Opportunity Commission. Decision of Coverage of Contraception (Dec. 14,2000), available 

at http://www.eeoc.gov/policy/docsidecision-<:ontraception.html( .. Contraception is a means by which a woman 

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The rOM found, however, that "[ djespite increases in private health insurance coverage 

of contraception since the I 99Os, many women do not have insurance covemge or are in health 

plans in which copayments for visits and for prescriptions have increased in recent years. ,,22 

Contraceptive copays can be so expensive that women can pay almost as much out-of-pocket as 

they would without covemge at all. 23 These high costs have posed a substantial barrier to access 

and effective use. The cost of contraceptive methods can cause women to have gaps in their use 

of birth control, or to employ less effective methods with lower upfront costs like condoms, as 

opposed to long-acting reversible methods like the IUD. Eliminating cost-sharing increases use 

of these more effective methods.24 

The WHA, and the HRSA Guidelines developed pursuant to it, close the gap, facilitating 

affordable coverage for this essential health care service. 25 Contrary to the suggestion in the title 

of this hearing, the contraceptive covemge requirement increases access to care; that is its 

purpose. 

Ill. Requiring Insurance Coverage of Contraception Does Not Infringe on Religious 

Liberty 

Opponents of family planning are urging HHS to eliminate contraceptive services from 

the HRSA Guidelines altogether, in furthemnce of their agenda to prevent all women from 

having this benefit. 26 Indeed, some go as far as to say that contraception "is not properly seen as 

basic health care.,,27 Such arguments contravene basic medical science.28 

controls her ability to become pregnant. ... [Employers] may not discriminate in their health insurance plan by 

denying benefits for prescription contraceptives when they provide benefits for comparable drugs and devices."); see 

a/so Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001). But see In re Union Pacific Railroad 

Employment Practices Litigation ,479 F.3d 936, 943 (8th Cir. 2007) (concluding that the Pregnancy Discrimination 

Act did not encompa.or;s contraceptives). 

"CWSINGTIIE GAPS, supra note 5, at 94. 

2l See Guttmacher Institute Testimony, supra note II, at 7-8; Su-Ying Liang et aI., Women's Out-aI-Pocket 

Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83 CONTRACEPTfON 

491,531 (June 2010). 

" Sontield, The Case for Insurance Coverage of Contraceptive Services, supra note 14. 

"See, e.g., 155 CONGo REC. at 512026-7 (daily ed. Dec 1,2009) (statement of Sen. Mikulski) ("We want to either 

eliminate or shrink those deductibles and eliminate that high barrier, that overwhelming hurdle that prevents women 

from having access to" preventive care.). 

26 See, e.g., Christian Medical Association, Comments on Interim Final Rule on Preventive Services (Sept. 29, 

2011). 

17 United States Conference of Catholic Bishops (USCCB), Comments on Interim Final Rules on Preventive 

Services, 3 (Aug. 31, 2011). 

28 Contraception is preventive care. See CLOSING THE GAPS, supra note 5, at 91. Despite baseless claims to the 

contrary, the HRSA Guidelines, which require coverage of all FDA-approved contraceptives, do not require 

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Short of removing the requirement, family planning opponents want an expansion of the 

exception to give any individual or entity a veto over the coverage available in any health plan.29 

They seek a regime under which individuals, insurers, secular employers, and organizations that 

self-identify as religious but employ a religiously diverse workforce - such as hospitals, social 

service agencies, and universities would be able to deny others contraceptive coverage, despite 

the 10M's conclusion that contraception is indicated preventive care for all women, without 

regard to whom they happen to work for, be insured by, or share enrollment in a health plan 

with. 

Requiring coverage of contraception in insurance plans does not infringe on religious 

liberty. The HRSA Guidelines -like the contraceptive coverage laws that have corne before 

themJO and a host of generally applicable anti-discrimination and labor laws across the countryare constitutionally unremarkable. Opposition to neutral laws from religious organizations is not 

unique to contraception. For example, individuals and institutions have claimed religious 

objections to desegregation and to equal pay laws: 

In '1964, three African-American residents of South Carolina brought a suit against Piggie 

Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. 

Bessinger argued that enforcement of the Civil Rights Act of 1964's public 

accommodations provision violated his religious freedom "since his religious beliefs 

compel[ed] him to oppose any integration of the races whatever."JI 

In 1976, Roanoke Valley Christian Schools added a "head of household" supplement to 

their teachers' salaries - but only to heads of household as determined by scripture. For 

Roanoke Valley, that meant married men. According to the church pastor affiliated with 

the school, "[wJhen we turned to the Scriptures to determine head of household, by 

scriptural basis, we found that the Bible clearly teaches that the husband is the head of the 

house, head of the wife, head of the family.,,32 When sued under the Equal Pay Act, 

coverage of medical abortion. Any arguments, therefore, that by including all FDA-approved contraceptives the 

HRSA Guidelines violate restrictions on abortion in the ACA or other federal laws is pure misdirection. 

29 See USCCB, supra note 27, at 18-19; see also The Respect for Rights of Conscience Act, H.R. 1179/S. 1467, 

112th Congo (2011). The USCCB endorsed this legislation as their response to the HRSA Guidelines. See Press 

Release, USCCB, HHS Mandate for Contraceptive and Abortifacient Drugs Violates Conscience Rights (Aug. I, 

2011), http://www.usccb.orglnewsl2011/11-154.cfm. 

)Q First Amendment claims brought against the California and New York contraceptive equity laws were rejected by 

the high court of each state. See Catholic Charities of SIlcramento, Inc., 85 P 3d at 74; Catholic Charilies of 

Diocese of Albany, 859 N .E.2d at 461. Those courts did not address the Religious Freedom Restoration Act 

("RFRA") because it is inapplicable to state laws. 

l! Newman •. Piggie Park Enters., Inc., 256 F. Supp. 941, 944 (D. S.C. 1966), aiJ'd in pari and re,,'d in pal'/ on 

other wounds, 377 F.2d 433 (4th Cir. 1967), af/'d and modified on other grounds, 390 U.S. 400 (1968). 

31 Dole •. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990). 

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Roanoke Valley claimed a right to an exemption from equal pay laws becausc its "headof-household practice was based on a sincerely-held belief derived from the Biblc.,,33 

But just as it was not a violation of religious freedom to require segregated restaurants to 

integrate,34 or schools to pay their teachers equally/5 in the face oflongstanding and sincerely 

held religious objections, it is not a violation of religious freedom to require that women have 

access to contraceptive coverage. 

A. The First Amendment 

The United States Supreme Court has rejected the notion that the Free Exercise Clause of 

the First Amendment requires exemptions from generally applicable and neutral laws like the 

Women's Health Amendment.36 As the Court noted in Employment Division v. Smith, to do 

otherwise would be to create a system "in which each conscience is a law unto itself."J7 The 

WHA requires all new insurance plans to include coverage of the preventive services listed in the 

HRSA Guidelines. It applies to plans held by secular and religiously affiliated employers alike. 

Such a neutral law does not violate the First Amendment, despite the existence of theological 

doctrines opposing contraception. 

In their advocacy on this issue, the United States Conference of Catholic Bishops 

("USCCB") and others have attempted to skirt the Smith standard in two ways. First, they 

argued that the contraceptive coverage requirement was somehow targeted at the Catholic 

Church. Although contraception and support for contraceptive coverage are overwhelmingly 

popular, objection to it is in no way limited to Catholic institutions.38 Regardless, the HRSA 

Guidelines are not aimed at any religious objector. Rather, the Guidelines "target" all insurance 

plans toward the goal of bettering women's health and well-being by requiring coverage of 

preventive services at no cost-sharing. 

HId. at 1397. 

34 Piggie Park Enters .. Inc., 256 F. Supp. at 945. 

" Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) (holding that a religious school that gave extra 

payments to married male teachers, but not married women, based on the religious beliefthat men should 

be "heads of households" could be held liable under equal pay laws); see a/so E.E.o.C. v. Fremont Christian Sch., 

781 F.2d 1362 (9th Cir. 1986) (holding that a religious school that gave male employees fumily health benefits but 

denied such benefits to similarly situated women because of the sincerely held belief that men are the "heads of 

households" violated Title VII). 

"See Emp/oyment Div. v. Smilh.494 U.S. 872 (1990). 

J1 Id. at 890. 

38 See, e.g., Christian Medical Association, supra note 26; Press Release, Family Research Council, FRC Opposes 

BBS Mandated Coverage of Abortifacients Under Obamacare (Aug 1,2011); Catholic Charities a/Diocese 0/ 

A/bany, 859 N.E.2d at 463 (plainti/fs challenging New York's contraceptive equity law included several Baptist 

groups). 

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Second, the USCCB invokes the "hybrid rights" exception to Smith, claiming that the 

contraceptive coverage requirement violates freedom of speech and association. In Smith, the 

Supreme Court explained its prior precedents, which did require exemptions from neutral laws, 

as implicating both religious liberty and a separate constitutional right. The lower federal courts 

have disagreed about whether the Court created a new "hybrid rights" exception to the Smith 

doctrine, and if so, what showing it demands of a religious adherent. 39 But even the most 

expansive view of the hybrid rights exception could not call into question the WHA. It is well 

established that one does not make out a hybrid rights claim "merely by combining a free 

exercise claim with an utterly meritless claim of the violation of another alleged fundamental 

right or a claim of an alleged violation of a non-fundamental or non-existent right.,M The WHA 

implicates neither speech nor association. 

Like other contraceptive coverage laws, the WHA does not "compel [anyone] to 

associate, or prohibit [anyone] from associating, with anyone.,,41 CompIfance with a health 

insurance law does not implicate expressive association. Similarly, compliance with the WHA is 

not an endorsement of birth control; adherence to a law does not violate the speech rights of 

someone who disagrees with it. As the California Supreme Court held in this context, "for 

purposes of the free speech clause, simple obedience to a law that does not require one to convey 

a verbal or symbolic message cannot reasonably be seen as a statement of support for the law or 

its purpose. Such a rule would, in effect, permit each individual to choose which laws he would 

obey merely by declaring his agreement or opposition:,42 Employers and insurance issuers 

remain free to oppose birth control, to attempt to persuade others not to use contraception, and to 

convey their moral messages. What they may not do is impose their religious beliefs on third 

parties by choosing which essential health services third parties are able to access. 

B. Religious Freedom Restoration Act 

Congress enacted the Religious Freedom Restoration Act ("RFRA") to restore the strict 

scrutiny standard that protected religious exercise from substantial burdens imposed by neutral 

laws prior to Smith. The ACLU advocated for its passage. Despite claims to the contrary, RFRA 

J9 See McTernan v. City of York, 564 F.3d 636, 647 n.5 (3d Cir. 2009) (listing the circuits that have rejected the 

notion ofa special hybrid rights rule); Jacobs v. Clark County Sch. Dist., 526 F.3d 419, 440 n. 45 (9th Cir. 2008) 

(declining to adopt doctrine after noting widespread scholarly criticism); Knight v. Conn. Dep't of Pub. Health, 275 

F.3d 156, 167 (2d Cir. 2001) (describing hybrid rights theory as non-binding dicta); Kissinger v. Bd. ofTrs., 5 F.3d 

177, 180 (6th Cir. 1993) (describing doctrine as "completely illogical") . 

.. Millerv. Reed, 176 F .3d 1202, 1208 (9th Cir. 1999). 

41 Catholic Charities of Diocese of Albany, 859 N.E.2d at 465. 

" Catholic Charities of Sacramento. Inc., 85 P.3d at 89; see also Gay Rights Coalition of Georgetown Un;v. Law 

Crr. v. Georgetown Univ., 536 A.2d 1,20·21 (D.C. 1987) (holding that provision of benefits to a student group 

would amount to neither "an abscract expression orche University'S moral philosophy" nor an expression of support 

for che group or its views). 

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is not implicated here for the simple reason that the contraceptive coverage requirement does not 

impose a substantial burden on religion. And even if the statute did impose such a burden, it 

furthers a compelling state interest in promoting gender equality, reproductive autonomy, and 

religious liberty. 

1. Substantial Burden 

Under RFRA, a "substantial burden exists when government action puts 'substantial 

pressure on an adherent to modify his behavior and to violate his beliefs[.],,·43 But the fact that 

government action "is offensive to [an individual's] religious sensibilities" does not render the 

action a substantial burden.44 The link between the contraceptive coverage requirement and the 

religiously prohibited behavior is too attenuated to amount to a substantial burden. 

The contraceptive coverage requirement simply requires employers to pay money, which 

purchases insurance, which covers a range of health care, which an employee may ultimately use 

to access birth control in her private life. The same, or greater, attenuation applies to insurers 

and individual purchasers. The long journey between a devout person's paying money, and 

someone else's use of that money to engage in behavior that the devout person considers sinful 

does not compel the government to excuse a religious adherent from a generallaw.45 

Courts have routinely rejected similar claims for exemption from paying taxes or 

providing benefits which conflict with its religious doctrine. In United States v. Lee, an Amish 

taxpayer objected to participating in the Social Security system on religious grounds. The 

Supreme Court unanimously rejected that free exercise claim, explaining: 

[I]t would be difficult to accommodate the comprehensive social security system with 

myriad exceptions flowing from a wide variety of religious beliefs. . .. If, for example, a 

religious adherent believes war is a sin, and if a certain percentage of the federal budget 

can be identified as devoted to war-related activities, such individuals would have a 

similarly valid claim to be exempt from paying that percentage of the income tax. The 

4l Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (quoting Thomas v. Review Bd .• 450 U.S. 707, 718 

(1981)); accord Goodall by Goodall v. Stafford CountySch. Rd., 60 F.3d 168, 171 (4th Cir. \995) (explaining that 

since RFRA does not create a new test to determine what constitutes a "substantial burden." courts look to pre-Smith 

free exercise cases for that analysis). 

44 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1070 (9th Cir. 2008) (en bane). 

4l See, e.g., Tarsney v. 0 'KeeJe, 225 F.3d 929 (8th Cir. 2000) (paying taxes that subsidize Medicaid abortion 

coverage cannot even support standing to assert a free exercise claim because the injwy it inflicts on a taxpayer 

religiously opposed to abortion is too attenuated). 

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tax system could not function if denorrrinations were allowed to challenge the tax system 

because tax payments were spent in a manner that violates their religious belief. 46 

Importantly, nothing in the HRSA Guidelines requires any person to use contraception. 

The requirement is merely that contraceptive services be covered in insurance plans at no costsharing, such that individuals may choose whether or not to access those services. Senator 

Barbara Mikulski, the author of the Women's Health Amendment, put it well when explaining 

the pwpose of the provision on the Senate floor: "[W]e do not mandate that you have the service; 

we mandate that you have access to the service. The decision as to whether you should get it 

will be a private one, unique to yoU.,,47 

Any entity covered by this provision remains free to relate its teachings about 

contraception to its adherents, its employees, and the general public, and attempt to persuade 

them not to use birth contrd. Indeed, when Wisconsin enacted a contraceptive equity provision 

with no religious refusal, a spokesman for the Diocese of Madison explained "Our employees 

know what church teaching is. And we trust them to use their conscience and do the right 

thing.,,48 

Insurance typically provides a broad range of benefits, some of which individual insureds 

will never use. Because Jehovah's Witnesses believe that accepting blood transfusions is a sin, 

devout Jehovah's Witnesses presumably do not use transfusion coverage. But this is a long way 

from asserting that a Jehovah's Witness employer should be entitled to purchase customized 

health plans that exclude coverage for blood transfusions for all its employees. As New York's 

highest court explained in a similar context, there is no "absolute right for a religiously-affiliated 

employer to structure all aspects of its relationship with its employees in conformity with church 

teach ings. ,,49 

Offering or contributing to insurance coverage that provides numerous health services, 

including one to which you object, simply is not a substantial burden cognizable under RFRA.50 

46 United Slates v. Lee, 455 U.S. 252, 259-60 (1982) (citations omitted); see also United States v.lndianapolis 

Baptist Temple, 224 F.3d 627 (7th Cir. 2000); Adams v Comm 'r, 170 F.3d 173 (3d Cir. 1999). 

" 155 CONGo REc. at S12277 (daily ed. Dec 3, 2009) (statement of Sen. Mikulski) (emphasis added) . 

.. Annysa Johnson, Catholic Church, Contraception Coverage Collide, MILWAUKEE JOURNAL-SENTlNEL, Aug. 12, 

2010, available at http://www.jsonline.comlfeaturesireligionl1 00504294.hlml . 

• , Catholic Charities of Diocese of Albany, 859 N.E.2d al465 (rejecting a challenge to New York's contraceptive 

equilY law). See also US Dep'l. of Laban. Shenandoah Baptisl Church, 707 F. Supp. 1450 (W.D. Va. 1989), 

oif'd sub nom. Dole V. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990); EE.o.C. v. Freemont Christian 

School, 781 F.2d 1362 (9th Cir. 1986). 

\0 See Goehring v. Brophy, 94 F.3d 1294, 1297, 1300 (9th Cir. 1996), overruled on other grounds by City of Boerne 

v. P.F. Flores, 521 U.S. 507 (1997) (rejecting students' objections to a university registration fee that was used to 

subsidize the schools' health program which covered abortion care, reasoning that the payments did not impose a 

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Any claim to the contrary would tum RFRA into a blanket religious exemption that would 

threaten numerous health, welfare, and civil rights protections. Thus, any RFRA claim fails at 

the threshold. Even ifit did not, the contraceptive coverage requirement survives RFRA review 

intact. 

2. Compelling Interest 

Allowing organizations to ignore the contraceptive coverage requirement would directly 

harm their employees' rights. The Supreme Court has recognized that granting an exemption to 

a religious employer "operates to impose the employer's religious faith on the employees.,,51 

Exempting employers from the contraceptive coverage requirement injures three fundamental 

rights of the women affected: gender equality, reproductive autonomy, and religious liberty. 

Those interests should not be sacrificed here. 

a. Gender Equality 

Omitting contraceptive coverage from a comprehensive benefit package is gender 

discrimination.52 Prescription contraceptives are, for the most part, a form of health care 

available only to women. The consequences of the failure to be able to access and use 

contraception fall primarily on women. Denying contraceptive coverage undennines women's 

control over childbearing, which directly affects women's ability to participate equally in 

society. The Supreme Court has recognized as much: "The ability of women to participate 

equally in the economic and social life of the Nation has been facilitated by their ability to 

control their reproductive lives.,,53 

Equality is unquestionably a compelling government interest.54 Ending sex 

discrimination in employment benefits is "equally ifnot more compelling than other interests 

substantial burden Dn the plaintiffs' religiDus exercise because '1he plaintiffs [were] nDt required to. accept, 

participate in, or advocate in any manner for the provision of abortion services."). 

" Lee, 455 V.S. at 261. This is all the mDre true fDr an insurer that would impDse its beliefs Dn the emplDyees Df a 

range Df different Drganizations. 

" See Equal EmplDyment OppDrtunity CDmmissio.n, DecisiDn Df CDverage Df CDntraceptiDn (Dec. 14, 2000), 

available at http://www.eeoc.gDvlpDlicy/docsidecisiDn-cDntraceptiDn.html( .. CDntraceptiDn is a means by which a 

WDman cDntrDls her ability to. becDme pregnant. .: .... [EmplDyers] may nDt discriminate in their health insurance plan 

by denying benefits fOi' prescriptiDn cDntraceptives ,'vhen they provide benetits for cDmparable drugs and devices."); 

Eric/aon v. Banell DrogCompany, 141 F. Supp. 2d 1266 (W.D. Wash. 2001). 

53 Planned Parenthood of Southeastern Pa. v. Casey, 505 V.S. 833, 856 (1992). 

54 Roberts v. United States Jaycees, 468 V.S. 609, 623 (1984). 

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that have been held to justity legislation that burdened the exercise of religious convictions.,,55 

Ensuring equal benefits to men and women promotes "interests of the highest order.,,56 

The WHA was designed to improve women's health and redress sex discrimination in 

health benefits. "[T]his legislation ... offers free preventive services to millions of women who 

are being discriminated against ... :,57 As Senator Mikulski noted: "Often those things unique 

to women have not been included in health care refonn. Today we guarantee it and we assure it 

and we make it affordable by dealing with copayments and deductibles .... ,,58 In particular, 

Congress intended to address gender disparities in out-of-pocket health care costs, much of 

which stems from reproductive health care: 

Not only do [women] pay more for the coverage we seek for the same age and the same 

coverage as men do, but in general women of childbearing age spend 68 percent more in 

out-of-pocket health care costs than men .... This fundamental inequity in the current 

system is dangerous and discriminatory and we must act. The prevention section of the 

bill before us must be amended so coverage of preventive services takes into account the 

unique health care needs of women throughout their lifespan. 59 

Creating gaping holes in the contraceptive coverage requirement would perpetuate the 

fundamental inequity that the WHA was designed to erase. 

b. Reproductive Autonomy 

At the core of the right to privacy is every person's right to make the profound, lifealtering decision of whether to become a parent. The "realm of personalliberly" includes a 

woman's right "to be free from unwarranted governmental intrusion into matters so 

fundamentally affecting a person as the decision whether to bear or beget a child.,,6Q 

"Fremont Christian Sch., 781 f.2d at 1369 (quoting E.E.O.C. v. Pac. Press I'lIbl'g Assoc., 676 F.2d 1272, 1280 

(9th Cir. 1982)). 

56 Shenandoah Baptist Church, 899 F.2d at 1398 (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)). The high 

courts of California and New York each reached this conclusion when considering their respective contraceptive 

coverage laws. See Catholic Charities of Sacramento, Inc., 85 P.3d at 92 (''The [contraceptive requirement] serves 

the compelling state interest of eliminating gender discrimination."); Catholic Charities of Diocese of Albany, 859 

N.E.2d at 468 (describing the "States substantial interest in fostering equality between the sexes, and in providing 

women with better health care"). 

l7 155 CONGo REc. at SI2020 (dailyed. Dec 1,2009) (statement of Sen. Reid); see a/so 155 CONGo REc. S11979, 

S11987 (daily ed. Nov. 30, 2009) (Statement of Sen. Mikulski). 

" 155 CONGo REc. at S11988 (daily ed, Nov. 30,2009) (statement of Sen. Mikulski) (emphasis added). 

"See 155 CONGo REc. at S 12027 (daily ed. Dec. 1,2009) (statement of Sen. Gillibrand); see also 155 CONGo REC. 

at S12272 (daily ed. Dec. 3, 2009) (statement of Sen. Stabenow) ("Women of childbearing age pay on average 68 

percent more for their health care than men do:'). 

,. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 

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Reproductive health care, including contraception, is constitutionally protected as necessary to 

implementing fundamental childbearing decisions.6t Protecting access to reproductive health 

services is a compelling public interest. 62 

Virtually all women of reproductive age have used birth control at some point.63 Denial 

of contraceptive coverage causes some women to forgo birth control or use less expensive and 

less effective methods, resulting in unintended pregnancies.64 Further, cost-sharing requirements 

pose substantial barriers to accessing this preventive care. 65 The contraceptive coverage 

requirement promotes women's interest in planning their families. 66 

c. Religious Liberty 

Just as those religious tenets opposing the use of contraception are entitled to respect, so 

too are contrary religious traditions, which hold that sexual intimacy need not be linked to 

procreation and that planning childbearing is a morally responsible act. In our constitutional 

system, the government is supposed to be a neutral actor, allowing individuals to follow their 

own religious or moral consciences. Requiring contraceptive coverage in health plans does just 

that - it allows every woman to decide for herself what is right for her and her family.67 That is 

not an employer's decision to make. 

IV. Creating Sweeping Exceptions to the Contraceptive Coverage Requirement Is 

the Top of a Slippery Slope 

The argument that the Affordable Care Act cannot require contraception coverage 

because some oppose birth control on religious grounds knows no limit. In a "cosmopolitan 

nation made up of people of almost every conceivable religious preference, ,,68 innumerable 

"Griswold, 381 U.S. 479. 

62 Am. Ufo League. Inc. v. Reno, 47 F.3d 642, 655-56 (4th Cir. 1995); Councilfor Life Coal. v. Reno, 856 F. Supp. 

1422,1430 (S.D. Cal. 1994). 

6) CLOSING THE GAPS, supra note 5, at 92. 

64 Guttmacher Institute Testimony, supra note II, at 8. 

os CLOSING THE GAPS, supra note 5, at 94 . 

.. See. e.g., 155 CONGo REc. at S 12025 (daily ed. Dec. 1,2009) (statement orSen. Boxer) ("These health care 

services include ... family planning services."); id. at S 12027 (statement orSen. Gillibrand) ("With [the WHAI, 

even more preventive screening will be covered, including ... family planning."); 155 CONGo REc. at SI2271 (daily 

ed. Dec. 3, 2009) (statement of Sen. Franken) ("Under (the WHAJ. the Health Resources and Services 

Administration will be able to include other important services at no cost, such as ... family planning"); id. at 12274 

(statement of Sen. Murray) ("We have to make sure we cover preventive services, and [the WHA] takes into account 

the unique needs of women. .. Women will have improved access to ... family planning services."). 

" As the California Supreme Court has recognized, "[0 Jnly those who join a church impliedly consent to its 

religious governance on matters of faith and discipline." Catholic CharitiesofSacramenro, lnc., 85 P.3d at 77 . 

• , Braunfeldv. Brown, 366 U.S. 599, 606 (1961). 

131 P age 
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medical procedures will be disfavored by adherents of one religion or another. Indeed, the 

legislative "fix" some have proposed goes far beyond creating loopholes to the contraceptive 

coverage requirement. H.R. 1179, the Respect for Rights of Conscience Act of2011, would 

allow any insurer, employer, or individual, to refuse coverage of any health service. Prenatal 

care, testing for HIV, mental health services, screening for cervical cancer, health care for 

smokers - coverage for all of these services and countless others could be denied to any person 

under this radically broad bill. Applying this approach to the ACA would undermine one of its 

most fundamental purposes: ensuring that all health insurance plans cover basic health services. 

In fact, it would undermine the very notion of health insurance. 

* * * 

Meaningful access to effective contraception is essential for women. The contraceptive 

coverage requirement is a huge step forward for women's health and equality. Every exception 

to the contraceptive coverage requirement "increases the number of women affected by 

discrimination in the provision of health care benefits.',69 The HHS Guidelines should be 

celebrated, not dismantled. 

69 Catholic Charities of Sacramento. Inc., 85 P.Jd at 94 (concluding that California's contraceptive coverage law 

was narrowly tailored). 

141 P a g ( 
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l..."".-

national partnership 

for women & families Because actions speak louder than words 

'-~ 

"00 New Health Law Mandates Threaten Conscience Rights and 

Access to Ca re?" 

Testimony submitted by 

Debra Ness, President 

Judith Lichtman, Senior Advisor 

U.S. House of Representatives 

Committee on Energy & Commerce 

Subcommittee on Health 

November 2, 2011 

1875 connecticut avenue, nw N suite 650 N washington, dc 20009 N phone: 202.986.2600 N fax: 202.986.2539 

email: info@nationalpartnership.org N web: www.nationalpartnership.org 
99 


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2 

Members of the House Energy & Commerce Subcommittee on Health: we are honored to 

submit this testimony on behalf of the National Partnership for Women & Families and the 

women and families we represent. 

That National Partnership for Women & Families is a nonprofit, nonpartisan SOl(c)3 

organization located in Washington, D.C. We have worked tirelessly for the last forty years to 

expand access to quality, affordable health care that includes comprehensive reproductive 

health services for all Americans; to eliminate discrimination in the workplace; and to enable 

women to meet the dual demands of work and family. The National Partnership for Women & 

Families strongly supports contraceptive coverage for all women and opposes efforts that 

would undermine this vital health care for many women. Efforts to restrict contraceptive access 

for some women by allowing employers to impose their own religious views on their employees 

undermine the important purposes of the Patient Protection and Affordable Care Act (ACA) and 

violate federal anti·discrimination law. 

All Women Deserve Equal Access to the Important Health Benefits of Contraceptive Coverage 

Virtually all women (99%) will use contraception during their reproductive lives.; Those 

numbers remain constant for Catholics (98%) and only 2% of Catholics use natural family 

planning as their method of contraception.H These women deserve access to the same 

preventive health services as all other women. As the 10M Committee convened by HHS to 

assist it in making a determination about coverage under the women's health amendment to 

the ACA noted in its report, access to contraceptive coverage is vital to women's health. 

Unintended pregnancy has serious implications for women and babies and for public health. As 

the 10M Committee explained: 

The risk factors for unintended pregnancy are female gender and reproductive capacity. 

(AJII sexually active women with reproductive capacity are at risk for unintended 

pregnancy .... Pregnancy spacing is important because of the increased risk of adverse 

pregnancy outcomes for pregnancies that are too closely spaced (within 18 months of a 

prior pregnancy). Short interpregnancy intervals in particular have been associated with 

low birth weight, prematurity and small for gestational age births. In addition, women 

with certain chronic medical conditions (e.g., diabetes and obesity) may need to 

postpone pregnancy until appropriate weight loss or glycemic control has been 

achieved. Finally, pregnancy may be contraindicated for women with serious medical 

conditions such as pulmonary hypertension (etiologies can include idiopathic pulmonary 

arterial hypertension and others) and cyanotic heart disease, and for high-risk women 

with the Marfan Syndrome .... 

The 10M Committee on Women's Health Research recently identified unintended 

pregnancy to be a health condition of women for which little progress in prevention has 

been made, despite the availability of safe and effective preventive methods. This 

report also found that progress in reducing the rate of unintended pregnancy would be 

possible by "making contraceptives more available, accessible, and acceptable through 
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3 

improved services. Another 10M report on unintended pregnancy recommended that 

"all pregnancies should be intended" at the time of conception and set a goal to 

increase access to contraception in the United States .... 

Family planning services are preventive services that enable women and couples to 

avoid an unwanted pregnancy and to space their pregnancies to promote optimal birth 

outcomes. iii 

The 10M Committee was made up of a wide variety of medical experts, including specialists in 

disease prevention, women's health issues, adolescent health issues, and evidence-based 

guidelines. The 10M Committee thoroughly examined the scientific evidence over a period of 

six months. As noted above, their scientific findings made clear that contraceptive coverage is a 

critical aspect of women's health care and thus to the public health of the United States. 

Currently, 28 states require that insurance plans include coverage of contraceptives if other 

similar services are covered. Eight of those states do not provide any sort of exemption." 

Allowing Certain Employers to Opt Out oj Comprehensive Coverage Requirements 

Undermines the Promise oj the ACA 

The ACA requires that women's preventive health services be covered without cost-sharing. As 

you are well aware, the Women's Health Amendment to the ACA, section 2713(a)(4), was 

approved by Congress to remedy past discrimination against women in the provision of health 

care and to ensure that all women's health care needs were met under the act.' The 

Congressional record makes clear that contraceptive coverage was contemplated as part of this 

important provision.,i 

Neither the Women's Health Amendment, nor any other portion of the ACA, contemplates 

allowing certain employers to discriminate against women in the provision of contraceptive 

services. Rather section 2713 of the ACA applies to all group health plans and plan issuers and 

states: "A group health plan and a health insurance issuer offering group or individual health 

insurance coverage shall, at a minimum provide coverage for and shall not impose any cost 

sharing requirements for ... with respect to women, such additional preventive care and 

screenings not described in paragraph (1) as provided for in comprehensive guidelines 

supported by the Health Resources and Services Administration for purposes of this 

paragraph."'" Nothing in this provision allows certain religious employers to be treated 

differently than all other employers. 

This is even more notable because Congress has included refusal provisions in many laws. In 

fact, another section of the ACA includes a refusal clause. Section 1303 of the ACA establishes 

"Special Rules" for coverage of abortion in health plans. Among other provisions, this section 

specifically allows individuals and entities to refuse to provide abortion care.'iii It also 

incorporates other federal laws that allow individuals and entities to refuse to provide some 

care to which they object." None of the refusal provisions in these federal laws extend to 

provision or coverage of contraception.' Moreover, the statute explicitly states that "Nothing in 

section 1303(c) of the Affordable Care Act shall alter the rights and obligations of employees 
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4 

and employers under Title VII of the Civil Rights Act of 1964."" As explained in greater detail 

below, allowing certain employers to fail to provide contraceptive coverage to their employees 

violates Title VII. 

One of the important goals of the ACA was to eliminate the discrimination against women that 

had so long interfered with their ability to get all of their health care needs met. Several 

important provisions were included in the law to ensure that these goals would be achieved. 

Section 1557 prohibits discrimination in health care on the basis of - among other thingssex.'ii Since the burdens of pregnancy fall entirely on women and most contraceptive methods 

are available only to women, failure to provide equal access to contraception constitutes 

discrimination on the basis of sex. Furthermore, access to contraception is essential to gender 

equality, as it is only when women can control their fertility that they are able to participate 

equally in society. 

Allowing some employers to opt out of contraceptive coverage requirements would also violate 

Section 1554 ofthe ACA, which states that the "Secretary of Health and Human Services shall 

not promulgate any regulation that ... (1) creates any unreasonable barriers to the ability of 

individuals to obtain appropriate medical care; (2) impedes timely access to health care services 

.. , or (6) limits the availability of health care treatment for the full duration of a patient's 

medical needs.",m Providing a religious exemption means that some women seeking legal 

reproductive healthcare services will be subjected to unnecessary and sometimes prohibitive 

financial obstacles in accessing the services. The exemption would create an unreasonable 

barrier for women seeking appropriate medical care by requiring those who work for certain 

religious employers to bear the substantial costs of contraceptive counseling and services. 

Allowing Some Employers to Opt Out of Comprehensive Coverage Requirements Violates 

Federal Non-Discrimination Law 

Section 1557, detailed above, makes clear that it does nothing to modify employers' obligation 

to comply with other civil rights laws. ,iv One of those laws is Title VII of the Civil Rights Act of 

1964, as amended by the Pregnancy Discrimination Act (PDA), which prohibits sex 

discrimination in employment.'v The PDA specifically prohibits discrimination against women 

"affected by pregnancy, childbirth, or related medical conditions" in all aspects of employment, 

including the receipt of fringe benefits.'v, The Supreme Court has long held that it is 

discrimination under this section to treat women differently, not just because they are 

pregnant, but because of their potential to become pregnant.J<Vii Just as it is discrimination 

prohibited under section 1557, it is a violation of Title VII to allow some employers to refuse to 

provide contraceptive coverage for their female employees. 

The specific issue of failing to provide contraceptive coverage along with other related health 

services was addressed by the Equal Employment Opportunity Commission in 2000. Two 

registered nurses filed complaints with the EEOC against their employers for their employers' 

refusal to cover prescription contraception while covering a wide array of other prescription 

drugs and preventative health care services. The EEOC panel noted that pregnancy 

discrimination included discrimination based on the potential to become pregnant and found 
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5 

that the PDA clearly prohibited discrimination in benefits, including prescription contraception. 

They based their decision on the language of the PDA, Supreme Court cases interpreting it, and 

Congress' legislative intent. The EEOC rejected the employers' arguments that they could 

exclude contraception for strictly financial reasons or because it was not used to treat 

"something abnormal about [the employee's] mental or physical health." They found that the 

employers had treated contraception differently than other preventative services and had, 

thereby, "discriminated on the basis of pregnancy." Because prescription birth control is only 

available for women, the EEOC also rejected the employers' argument that they did not 

explicitly distinguish between men and women. The EEOC ordered the employers to cover the 

expenses of prescription contraceptives, including "the full range of prescription contraceptive 

choices.,,""iii The few courts that have addressed this issue have reached varied results, with a 

number offederal courts agreeing that failing to provide contraceptive coverage violates Title 

VI!.'i' 

Conclusion 

The National Partnership for Women & Families urges Congress to ensure that all women have 

access to comprehensive health services, including contraceptive methods. Attempts to 

dismantle these requirements discriminate against certain women because of where they are 

employed and endanger their health. Congress should reject all attempts to undermine the 

promise of the Women's Health Amendment to the ACA. 

I Rachel K. Jones and Joerg Dreweke, Countering Conventiona! Wisdom: New Evidence on Religion and 

Contraceptive Use, Guttmacher Institute (April 2011), availob!e at http://www.guttmacher.org/pubs/Religion.andContraceptive·Use.pdf. 

ii Id. 

!II Committee on Preventive Services for Women Board on Population Health and Public Health Practice; Clinical 

Preventive Services for Women: C!osing the Gaps; Institute of Medicine 90·91 (July 2011) (internal citations 

omitted). 

" See, State Policies In Brief: Insurance Coverage of Contraceptives, Guttmacher Institute (Sept. 1, 2011), at 

http://www.guttmacher.org/statecenter/spibs/spib-.CC. pdf 

"See, David Hers2enhorn and Robert Pear, Senate Passes WDmen's Health Amendment, Prescriptions: The Business 

of Health Care, New York Times blogs, ot http://prescriptions.blogs.nytimes.com/2oo9/12/03/senate-passes· 

worn ens~h ealt h~ am en d m e nt/ 

"I Sen. A. Franken. CongressiDnal Record, Dec. 3, 2009, p. 5.12271; Sen. B. Boxer, Congressional Record, Dec. 1, 

2009, p. 5.12025; Sen. D. Feinstein, Congressional Record, Dec. 2, 2009, p. S. 12114; Sen. B. Nelson, Congressional 

Record, Dec. 3, 2009, p. 5.12277. 

,;, Patient Protection and Affordable Care Act, Pub L. No. 111·148, § 2713, codified at 42 USc. 30ogg-13 (2010) 

(emphasis added). 

"" Patient Protection and Affordable Care Act, Pub L. No. 111-148, § 1303(a)(3), codified at42 U.S.c. § 18023 

(2010). 

" §1303(b)(2). 

, See, Church Amendment, an amendment to the Health Programs Extension Act of 1973 §401, 42 U.s.c. §300a-7; 

Coats Amendment, an amendment to the Public Health Services Act of 1996 §245, 42 U.S.c. §238n; Weldon 

Amendment, Consolidated Appropriations Act of 2010 §508. 

" §1303(b)(3) . 

• " "Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on 

the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.s.c. 2000d et seq.), title IX of the 

Education Amendments of 1972 (20 USc. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.c. 6101 et 
103 


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6 

seq,), or section 504 of the Rehabilitation Act of 1973 (29 U,S,c. 794), be excluded from participation in, be denied 

the benefits of, or be subjected to discrimination under, any health program or activity, any part ofwhkh is 

receiving Federal financial assistancel including credits, subsidies, or contracts of insurance, or under any program 

or activity that is administered by an Executive Agency or any entity established under this title (or amendments)," 

Patient Protection and Affordable Care Act, Pub L No, 111-148, § 1557(a), codified at 42 U's,C, § 18116 (2010), 

.... Patient Protection and Affordable Care Act, Pub L No, 111-148, § 1554, codified at 42 U,S,C, § 18114 (2010), 

,;, "Nothing in Ihis title (or an amendment made by this title) shall be construed to invalidate or limit the rights, 

remedies, procedures, or legal standards available to individuals aggrieved under title VI of the Civil Rights Act of 

1964 (42 U,S,c, 2000d et seq,), title VII of the Civil Rights Act of 1964 (42 U's,c. 2000e et seq,), title IX of the 

Education Amendments of 1972 (20 U,S,c, 1681 et seq,), section 504 of the Rehabilitation Act of 1973 (29 U,S,c, 

794), or the Age Discrimination Act of 1975 (42 u,s.c. 611 et seq,), or to supersede State laws that provide 

additional protections against discrimjnation on any basis described in subsection (a}." Patient Protection and 

Affordable Care Act, Pub L, No, 111-148, § 1557{b), codified at 42 U,S,C, § 18116 (2010), 

~ 42 U,S,C, § 2000e el seq, 

~'42 U,S,c, § 2000e(k), 

N" See Int'l Union, UAW v. Johnson Controls, 499 U.s. 187 (1991), 

N", Equal Employment Opportunity Commission (EEOC), Decision on Coverage of Contraception (Dec. 14, 

2000), at http://www.eeoc.gov/policy/docs/decision-contraception.html(last visited Sept, 21, 2011), 

'" Compore, Erickson v. Bartell Drug Co., 141 F, Supp. 2d 1266 (W.O. Wash. 2001) (holding that failure to provide 

contraceptive coverage resulted in less comprehensive coverage for women than for men and violated Title VII); 

Cooley v. DaimlerChrysler Corp" 281 F.Supp.2d 979 (E.D. Mo. 2003); Mauldin v. Wal-Mart, 89 Fair EmpL Prac. Cas. 

(BNA) 1600 (N,D. Ga. 2002) (certifying plaintiff class of contraceptive-using Women and citing Erickson. Wal-Mart 

ultimately settled the case by agreeing to provide contraceptive coverage); with, In re Union Pacific Railroad 

Employment Practices litigation, 479 F.3d 936, 943 (8th Cir. 2007) (holding that the potential to become pregnant 

is not "related to pregnancy" under the PDA and that contraceptives did not have to be compared with other 

preventive health services, an argument in direct contrast to the WHA and 10M Committee findings); Stocking v. 

AT& T, No. 03-0421, 2007 U.S. Dis!. LEXIS 78188 (W.O. Mo. 2007) (controlled by Union Pacific); Cummins v. Illinois, 

No. 02-4201, 2005 U.S, Oist. LEXIS 42634 (S.D, III 2005). 
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Page I of 11 

November 2, 20 II 

TESTIMONY BEFORE THE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON HEALTH 

FOR THE HEARING ENTITLED "DO NEW HEALTH LAw MANDATES THREATEN CONSCIENCE RIGHTS 

AND ACCESS TO CAREr' 

NOVEMBER 2, 2011 

BYTHE 

NATIONAL HEALTH LAw PROGRAM 

The National Health Law Program ("NHeLP") submits this testimony to the Energy and 

Commerce Committee's Subcommittee on Health. NHeLP is a public interest law finn working 

to advance access to quality health care and protect the legal rights of low-income and 

underserved people. NHeLP provides technical support to direct legal services programs, 

community-based organizations, the private bar, providers, and individuals who work to preserve 

a health care safety net for the millions of uninsured or underinsured low-income people. In a 

just society, every woman must be able to make her own decisions about whether or when to 

have children based on her own beliefs and needs. The Patient Protection and Affordable Care 

Act ("the ACA") recognizes that preventive health services are critical to individual and 

community health, and that cost is often a barrier to accessing the preventive services we need. 

Moreover, it acknowledges the critical role that a woman's health plays in her family and her 

community by explicitly requiring that women's preventive health services be covered without 

cost-sharing. 

NHeLP's testimony addresses issues raised by the Majority staffs Internal Hearing 

Memorandum dated October 28, 20 II, and circulated to Members of the Subcommittee on 

Health. NHeLP strongly supports the decision by the U.S. Department of Health and Human 

Services Secretary, Kathleen Sebelius, to adopt the recommendations from the Institute of 

Medicine ("10M") to require insurance coverage of women's preventive health services, 

including contraception, without cost-sharing. NHeLP strongly opposes efforts to undermine the 

health and autonomy of women, and the Majority stafT's Memorandum presents two such 

threats: (I) HRSA's proposed exemption from the contraceptive requirement for certain 

religious employers; and (2) H.R. 1179, an expansive bill that undermines health reform by 

permitting insurers to opt-out of providing insurance coverage. 

These efforts disregard accepted "standards of care," practices that are medically 

necessary and services that any practitioner under the circumstances should be expected to 

render. Every person who enters a doctor's office or hospital expects that the care he or she gets 

will be based on the best medical evidence and will meet accepted medical guidelines - in other 

words, that care will comport with medical standards of care. Refusal clauses and denials of care 
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Page 2 of II 

November 2, 20 II 

violate these standards. They undermine standards of care by allowing or requiring health care 

professionals and institutions to abrogate their responsibility to deliver services and information 

that would otherwise be required by generally accepted practice guidelines. Ultimately, refusal 

clauses and institutional denials of care conflict with professionally developed and accepted 

medical standards 0 f care and have adverse health consequences for patients. 

A. THE REQUIREMENT TO COVER CONTRACEYfIVES AS A COMPONENT 

OF PREVENTIVE CARE IS EVIDENCE-BASED. 

The ACA requires group health plans and health insurance issuers to cover certain 

preventive services without cost-sharing. I Among other things, the ACA requires new group 

health plans and health insurance issuers to cover such additional women's health preventive 

care and screenings as provided for in guidelines supported by the Health Resources and 

Services Administration ("HRSA")? By doing so, the ACA recognizes that women have unique 

reproductive and gender specific health needs, disproportionately lower incomes, and 

disproportionately higher out-of-pocket health care expenses. HRSA commissioned the 

independent 10M to conduct a scientific review and provide recommendations on specific 

preventive measures that meet women's unique health needs and help keep women healthy. The 

10M developed eight recommendations based on scientific evidence, including the input of 

independent physicians, nurses, scientists, and other experts. HRSA recently adopted eight 

recommendations submitted by the Institute of Medicine ("10M"), which include the 

recommendation that women receive coverage for all FDA-approved methods of contraception 

free of cost-sharing. 3 Requiring coverage of all eight preventive services recommended by the 

10M, including coverage of all-FDA approved methods of contraception, is good medical and 

economic policy. 

HRSA charged the 10M with convening a committee to determine the preventive 

services necessary to ensure women's health and well-being.4 To this end, the 10M convened a 

committee of 16 eminent researchers and practitioners to serve on the Committee on Preventive 

Services for Women. 5 The Committee met five times in six months.6 The Committee reviewed 

existing guidelines, gathered and reviewed evidence and literature, and considered public 

comments.? With respect to women, the 10M identified gaps in the coverage for preventive 

services not already addressed by the ACA, including services recommended by the United 

States Preventive Services Task Force, the Bright Futures recommendations for adolescents from 

the American Academy of Pediatrics, and vaccinations specified by the Centers for Disease 

Control and Prevention's Advisory Committee on Immunization Practices. The 10M 

1 Patient Protection and Affordable Care Act ("ACA"), Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by 

Health Care and Education Reconciliation Act, PUb. L. No. 111-152, 124 Stat. 1029 (2010), § 2713(a), 42 U.S.c. § 

300gg-13. 

'ACA § 2713(a)(4), 42 U.S.c. § 3OOgg-13. 

) U.S. Dep't of Health & Human Servs., Health Res. & Servs. Admin., Women's Preventive Services: Required 

Health Plan Coverage Guidelines, http:/;www.hrsa.goviwomensguidelines. 

4 Institute of Medicine of the National Academies, supra note 3, at 1. 

'[d. at2. 

'Id 

7 [d. 
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November 2, 20 II 

recommended that, among other things, women receive coverage for all United States Food and 

Drug Administration ("FDA")-approved methods of contraception free of cost-sharing because: 

(1) pregnancy affects a broad population; (2) pregnancy prevention has a large potential impact 

on health and well-being; and (3) the quality and strength of the evidence is supportive of the 

recommendation to provide contraceptive coverage free of cost-sharing. 8 

B. CONTRACEPTION EFFECTIVEL Y PREVENTS UNINTENDED 

PREGNANCIES, AND WOMEN NEED TO BE ABLE TO SELECT THE 

METHOD THAT IS MOST APPROPRIATE. 

Family planning is an essential preventative service for the health of women and families. 

In 2008, there were 66 million United States women of reproductive age (ages 13-44).9 Over 

half of these women-36 million-were in need of contraceptive services and supplies because 

they were sexually active with a male, capable of becoming pregnant, and neither pregnant nor 

seeking to become pregnant. 10 Each year, nearly half of the prepancies in the United States are 

unintended-meaning they were either unwanted or mistimed. 1 Forty-two percent of 

unintended pregnancies end in abortion. 12 By age 45, more than half of all women in the United 

States will have experienced an unintended pregnancy, and four in ten will have had an 

abortionY Increased access to, and use of, contraceptive information and services could reduce 

the rate of these unwanted pregnancies. 

The 10M report recognized that not all contraceptive methods are right for every woman, 

and access to the full range of pregnancy prevention options allows a woman to choose the most 

effective method for her lifestyle and health status. Current methods for preventing pregnancy 

include hormonal contraceptives (such as pills, patches, rings, injectables, implants, and 

emergency contraception), barrier methods (such as male and female condoms, cervical caps, 

contraceptive sponges, and diaphragms), intrauterine contraception, and male and female 

sterilization. As the 10M reported, female sterilization, intrauterine contraception, and 

contraceptive implants have failure rates ofless than one percent 14 Injectable and oral 

contraceptives have failure rates of seven and nine percent, largely due to misuse. 15 Failure rates 

for barrier methods are higher. 16 A woman has an 85 percent chance of an unintended pregnancy 

• Id. at 6, 151. 

, Jennifer J. Frost, Stanley K. Henshaw & Adam Sonfield, Guttmacher Institute, Contraceptive Needs and Services: 

National and State Dala, 2008 Update 3 (2010), http://www.guttmacher.org/pubs/winlcontraceptive-needs2008.p<!f. 

101d. 

II Lawrence B. Finer & Stanley K. Henshaw, Disparities in Rates a/Unintended Pregnancy in the United States, 

1994 and 2001, Perspectives on Sexual & Reprod. Health 90, 92 (2006), 

http://www.guttmacher.org/pubslpsrhlfuI1l3809006.pdf; Guttmacher Institute, Facts on Induced Abortion in the 

United States (Aug. 2011), www.agi-us •. org/pubs/tb induced abortion.hlm!. 

12 Institute of Medicine of the National Academies, supra note 3, at 102. 

Il Gunmaeher Institute, Fact Sheet: Facts on Induced Abonion in the United Slates (Aug. 20 II), 

http:>www.gunmacher.org/pubslfbinducedabortion.htm!. 

I. Institute of Medicine of the National Academies. supra note 3, at 104-05. 

111d. 

101d. 
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November 2,2011 

if she uses no method of contrnception. 17 Approximately 50 percent of unintended pregnancies 

in the United States occur among the eleven percent of women using no contraceptive method. IS 

According to the Guttmacher Institute, in the United States, publicly funded family planning 

services and supplies alone help women avoid approximately 1.5 million unintended pregnancies 

each year. 19 If these services were not provided in 2008, unintended pregnancy rates would have 

been 47 percent higher, and the abortion rate would have been 50 percent higher.2o 

C. CONTRACEPTIVES ARE WIDELY USED IN THE UNITED STATES. 

Most sexually active women in the United States use contraception to prevent pregnancy. 

Contraceptive use is nearly universal in women who are sexually active with a male partner: 

more than 99 percent of women 15-44 years of age who have ever had sexual intercourse with a 

male have used at least one contrnceptive method. 21 This is true for nearly all women, of all 

religious denominations.22 Indeed, the overwhelming majority of sexually active women of all 

denominations who do not want to become pregnant are using a contrnceptive method.23 

Approximately 98 percent of sexually active Catholic women have used contraceptive methods 

banned by the Catholic Church.24 Even among those Catholic women who attend church once a 

month or more, only two percent rely on the natural family planning method to prevent 

unintended pregnancy. 25 

D. COST PREVENTS WOMEN FROM ACCESSING CONTRACEPTIVE 

INFORMATION AND SERVICES. 

Financial barriers impede women's access to contraceptive information and services. 

Cost-sharing can pose barriers to accessing health care services, particularly for low-income 

women. Indeed, one of the major barriers to universal contraceptive access is the high out-ofpocket cost for women-who are also disproportionately low-income--whose health plans do 

not cover contraception. Low-income women have higher rates of unintended pregnancy, as 

compared to higher-income women.26 Low-income women are the least likely to have the 

resources to obtain reliable methods of family ~lanning, and yet, they are most likely to be 

impacted negatively by unintended pregnancy. 7 

17 Id. at 105. 

18 Guttmacher Institute, supra note 14. 

" ]ennifer]. Frost, Stanley K. Henshaw & Adam Sonfield, Guttmacher Institute, Contraceptive Needs and Services: 

National and State Data, 2008 Update 5 (2010), http://www.guttmacheLorg/pubsiwinicontraceptive-needs2008.pdf. 

20 Id. 

21 Williams D. Mosher &]0 Jones, Use of Contraception in the United States: /982-2008, Nat'J Clr. for Health 

Statistics, 23 Vital and Health Statistics, no. 29, 2010, at 5. 

22 Rachel K. Jones & Joerg Dreweke, Guttmacher Institute, Countering Conventional Wisdom: New Evidence on 

Religion and Contraceptive Use 4-5 (2011), http://www.guttmacher.org/pubsiReligion-and-Contraceptive-Use.pdf. 

2l ld. 

"Id. at 4. 

" Id. at 5. 

" Lawrence B. Finer & Stanley K. Henshaw, supra note 12. 

27 Sheila D. Rustgi, Michelle M. Doly & Sara R. Collins, The Commonwealth Fund, Women at Risk: Why Many 

Women are Forgoing Needed Health Care 3-4 (2009), 
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November 2, 201 I 

Increased use oflonger-acting, reversible contraceptive methods, which have lower 

failure rates, could further help reduce unintended pregnancy rates. These more effective 

methods of contraception, however, also have the most up-front costs, which put them outside of 

the reach of many women.28 In 2008, for example, only 5.5 percent of women using 

contraception chose the more effective and longer-term methods?9 As the 10M recognized, the 

"elimination of cost sharing for contraception ... could greatly increase its use, including use of 

the more effective and longer-acting methods, especially among poor and low-income women 

most at risk for unintended pregnancy." 30 In this regard, the California Kaiser Foundation 

Health Plan's experience is informative. The California Kaiser Foundation Health Plan 

eliminated copayments for the most effective contraceptive methods in 2002. 31 Prior to the 

change, users paid up to $300 for 5 rars of use; after elimination of the co-payment, use of these 

methods increased by 13 7 percent. 3 

E. PREVAILING STANDARDS OF CARE REQUIRE THAT WOMEN HAVE 

ACCESS TO CONTRACEPTIVE INFORMATION AND SERVICES. 

The government should make health care decisions based on scientific evidence and good 

economic policy, not on the religious and moral beliefs of some institutions. Health care refusals 

and denials of care, also known as "conscience" clauses, are based on ideological and political 

justifications that have no basis in scientific evidence, good medical practice, or patient needs. 

These policies violate the essential principles of modern health care delivery: evidence-based 

practice, patient centeredness, and prevention. "Standards of care" are practices that are 

medically necessary and the services that any practitioner under the circumstances should be 

expected to render. Refusal clauses and denials of care undermine standards of care by allowing 

or requiring health care professionals and/or institutions to abrogate their responsibility to 

provide services and information that would otherwise be required by generally accepted practice 

guidelines. 

Although there is near universal agreement in medical practice guidelines that women 

should be given information about and access to contraceptives to prevent pregnancy, women 

face many barriers to contraceptive use, including institutional restrictions, physicians' denials of 

care, and pharmacists' refusals to fill prescriptions. Women consider a number of factors in 

determining whether to become or remain pregnant, including: age, educational goals, economic 

situation, the presence of a partner, medical condition, mental health, and whether they are taking 

medications that are contra-indicated for pregnancy. For example, a number of commonly 

htm:!iwww.commonwealthfund.orgl-lmediaiFilesiPublications/lssue%20Brief/2009lMayIWomen%20at%20Risk/P 

Dr 1262 Rustgi women at risk issue brief Final.pdf .. 

" Institute of Medicine, supra note 3, at 108. 

" Kelly Cleland, et aI., Family Planning as Cost-Saving Preventive Health Service, New Eng. J. Med I (2011), 

http://healthpolicyandreform,nejm,org/?p= 14 266. 

30 Institute of Medicine of the National Academies, supra note 3, at 109. 

1I Jennifer J. Frost & Jacqueline E. Darroch, Factors Associated with Contraceptive Choice and Inconsistent Method 

Use, 40 Sexual & Reprod. Health 94 (2008). 

12 Id. 
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Page 6 ofll 

November 2, 2011 

prescribed pharmaceuticals are known to cause impainnents in the developing fetus or to create 

adverse health conditions if a woman becomes pregnant while taking them. Approximately 11.7 

million prescriptions for drugs the FDA has categorized as Pregnancy Classes D (there is 

evidence of fetal harm, but the potential may be acceptable despite the harm) or X 

(contraindicated in women who are or may become pregnant) are filled by significant numbers of 

women of reproductive age each year.33 Pregnancy for women taking these drugs carries risk for 

maternal health and/or fetal health. 34 Women taking these drugs who might be at risk for 

pregnancy are advised to use a reliable form of contraception to prevent pregnancy.35 

Unwanted pregnancy is associated with maternal morbidity and risky health behaviors. 

The World Health Organization recommends that pregnancies should be spaced at least two 

years apart.36 Pregnancy spacing allows the woman's body to recover from the pregnancy. 

Further, if a woman becomes pregnant while breastfeeding, the health of both her baby and fetus 

may be compromised as her body shares nutrients between them. According to the American 

College of Obstetricians and Gynecologists, women who become pregnant less than six months 

after their previous pregnancy are 70 percent more likely to have membranes rupture 

prematurely, and are at a significantly higher risk of other complications.3

? Family planning is a 

focus area of the Healthy People 2010 health promotion objectives set out by the United States 

Department of Health and Human Services. Goal 9 of Healthy People 2010 is, "Improve 

pregnancy planning and spacing and prevent unintended pregnancy.,,38 Specific indicators 

include increasing intended pregnancies from 51 percent to 70 percent; increasing pregnancy 

spacing to 24 months; increasing the proportion of women at risk for unintended pregnancy who 

use contraceptives to 100 percent, and increasing the proportion ofteens that use contraceptive 

methods that both prevent pregnancy and prevent sexually transmitted disease.39 

Further, millions of women live with chronic conditions such as cardiovascular disease, 

diabetes, lupus, and epilepsy, which if not properly controlled, can lead to health risks to the 

pregnant woman or even death during pregnancy. Denying these women access to contraceptive 

information and services does not comport with medical standards that recommend pregnancy 

prevention for these medical conditions. Refusal clauses impose significant burdens on the 

health and well-being of affected women and their families. These are burdens that fall 

disproportionately and most harshly on low-income women, severely impacting their health 

outcomes and their ability to give informed consent for medical care. Low income women, and 

low income women of color already experience severe health disparities in reproductive health, 

maternal health outcomes, and birth outcomes. Cardiovascular disease, lupus, and diabetes, for 

3J Id. 

14 David L. Eisenberg, et aI., Providing Contraception for Women Taking Potentiaily Teratogenic Medications: A 

Survey of Internal Medicine Physicians' Knuwledge. Attitudes and Barriers, 25 J. Gen. Internal Med. 291, 291 

(2010). 

"!d. aI291-92. 

36 Cidey Marston, Report ofa WHO Technical Consultation on Birth Spocing, World Health Organization, (June 

13-15, 2005). 

31 Am. Coli. of Obstetricians & Gynecologists, Statement of the Am. Coil. of Obstetricians & Gynecologists to the 

U.S. Senate. Comm. on Health. Educ .• Labor & Pensions. Pub. Health Subcomm. on Safe Motherhood (April 25, 

2002). 

" U.S. Dep't of Health & Human Servs., Healthy People 20 I 0: Understanding and Improving Health (Nov. 2000). 

19 !d. 
110 


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example, are chronic diseases that disproportionately impact women of color. The incidence rate 

for lupus is three times higher for African American women than for Caucasian women.4(l 

Similarly, although an estimated 7.8 percent of Americans have diabetes, the prevalence rate (the 

number of cases in a population at a specific time) is higher for women of color in all age groups, 

with obesity and family history being significant risk factors for Type II diabetes. 41 Women who 

are poor also have unintended pregnancy rates that are more than five times the rate for women 

in the highest income level. 42 Nearly one out often African American women and one in 

fourteen Latinas of reproductive age experience an unintended pregnancy each year. 43 

Inaccessible and unaffordable contraceptive counseling and services contrihute to these 

disparities. 

Heart disease, for example, is the number one cause of death for women in the United 

States.44 The American College of Cardiology and the American Heart Association Task Force 

on Practice Guidelines issued specific recommendations for management of women with 

valvular heart disease.4s They conclude that individualized preconception management should 

provide the ratient with information about contraception as well as material and fetal risks of 

pregnancy.4 Some cardiac conditions in which the physiological changes brought about in 

pregnancy are poorly tolerated include vavular heart lesions such as severe aortic stenosis, aortic 

regurgitation, mitral stenosis, and mitral regurgitation all with III-IV symptoms, aortic or mitral 

valve disease, mechanical prosthetic valve requiring anticoagulation and aortic regurgitation in 

Marfan syndrome.47 

The American College of Obstetricians and Gynecologists and the American Diabetes 

Association have developed practice guidelines for the preconception care for women with 

pregestational diabetes. According to the American Diabetes Association, planned pregnancies 

greatly facilitate diabetes care. Their recommendations for diabetic women with childbearing 

potential include: (I) use of effective contraception at all times, unless the patient is in good 

metabolic control and actively trying to conceive; (2) counseling about the risk of fetal 

impairment associated with unplanned pregnancies and poor metabolic control; and (3) maintain 

blood glucose levels as close to normal as possible for at least two to three months prior to 

conception.4B The American College of Obstetricians and Gynecologists further recommends 

'" U u.s. Department of Health and Human Services Office on Women's Health, Lupus: Frequenrly Asked 

~estions 2 (June 13,2001). http://www.womenshealth.gov/publicationslour-publicationslfact .. sheet/lupus.pdf. 

U.S. Department of Health and Human Services. National Diabetes lnfonnation Clearinghouse, Diabetes 

Overview, hllp:lldiggetes.niddknih.govldmlpuhsioverviewlilscope; Ann S. Bames, The Epidemic of Obesity and 

Diabetes, 38 Te~. Heart Institute J. 142 (2011). 

42 Lawrence B. Finer & Stanley K. Henshaw, supra note 13, at 94. 

4J Susan A. Cohen, Abortion and Women of Color: The Bigger Picture, II Guttmacher Policy Review 3 (Summer 

2008), http:;lwww.guttmacher.orgipubslgprIl1l3Igprl10302.html. 

.. Lori Mosca, et al., Tracking Women's Awareness of Heart Disease: An American Heart Association NaJional 

Study, 109 J. Am, Heart Ass'n 573 (Feb, 4,2004), 

., Robert O. Bonow, et aI., Guidelines for the Management of Patients with Valvular Heart Disease, American 

College of Cardiologyl American Heart Association Task Force on Practice Guidelines (Committee on Management 

of Patients with Valvular Heart Disease), 98 J. Am. Coil. of Cardiology 1949-1984 (Nov. 1998). 

46 rd . • , rd . 

.. American Diabetes Association, Standards afmedical care in diabetes-2006, 29 Diabetes Care S4, S28 (2006). 
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November 2,2011 

that H[aJdequate maternal glucose control should be maintained near physiological levels before 

conception and throughout pregnancy to decrease the likelihood of spontaneous abortion, fetal 

malformation, fetal macrosomia [excessive birthweightJ, intrauterine fetal death, and neonatal 

morbidity.,,49 

Similarly, contraception plays a critical role in preparing a woman with lupus for 

pregnancy. Lupus is an auto-immune disorder of unknown etiology which can affect multiple 

parts of the body such as the skin, joints, blood, and kidneys with multiple end-organ 

involvement. Often labeled a "woman's disease," nine out often people with lupus are 

women.50 Women with lupus who become pregnant face particularly increased risks. A large 

review of United States hospital data found the risk of mate mal death for women with lupus is 

twenty times the risk of non-lupus pregnant women. 51 These women were three to seven times 

more likely to suffer from thrombosis, thrombocytopenia, infection, renal failure, hypertension, 

and preeclampsia.52 Women who suffer from moderate or severe organ involvement due to 

lupus are at significantly higher risk for developing complications during pregnancy, and the 

guidelines discussed above regarding chronic disease apply to women with those comorbidities. 53 This should be taken into consideration in the decision to become pregnant or to 

carry a pregnancy to term. 54 

Historically, women with lupus were discouraged by the medical community from 

bearing children. While this is no longer always true, pregnancy for women with lupus is always 

considered high risk, and should be undertaken when, if at all possible, the disease is under 

control. The National Institute of Arthritis and Musculoskeletal and Skin Diseases ("NIAMS") 

reconunends that a woman should have no signs or symptoms of lupus. 55 In addition, NIAMS 

directs women as follows: "Do not stop using your method of birth control until you have 

discussed the possibility of pregnancy with your doctor and he or she has determined that you are 

healthy enough to become pregnant.,,56 

F. DENYING WOMEN ACCESS TO CONTRACEPTIVE INFORMATION AND 

SERVICES UNDERMINES QUALITY OF CARE FOR WOMEN. 

Ideological restrictions occur at three levels: the individual health professional level, the 

institutional and health system level, and the political level. Refusal clauses are statutory or 

regulatory "opt out" provisions that impede patient access to necessary and desired health care 

services and information. At the institutional level, the restrictions that have the greatest impact 

on access to care are those imposed by institutions controlled by religious entities. In particular, 

40 The American College of Obstetricians and Gynecologists, ACOG Praclice Bulletin No. 60: Pregestalional 

diabetes mellitus, 115 Obstetrics & Gynecology 675 (2005). 

'0 U.S. Department of Health and Human Services Office on Women's Health, supra note 40, at 2. 

SI Megan E. B. Clowse, et aI., A national study of the complications o[lupus in pregnancy, 199 Am. J. Obstet. & 

Gynecol. 127e. I, e.3 (Aug. 2008). 

" [d. at 127e.3-e.4. 

lJ Id. 

" National Institute of Arthritis and Musculoskeletal and Skin Diseases, Lupus: A Patient Care Guide for Nurses 

and Other Health Professionals 27-62, Patient Information Sheet 4-5 (3d ed. Sept. 2006). 

" Id. at 45-46, Patient Information Sheet No. 11. 

" {d. at Patient Information Sheet No.4. 
112 


75050.102

Testimony of the National Health Law Progr.un 

Page 9 of II 

November 2,2011 

the Catholic health system has the broadest religion-based health care restrictions. The U.S. 

Conference of Catholic Bishops has issued The Ethical and Religious Directives for Catholic 

Health Care Services fur all Catholic medical institutions. The Directives specify a range of 

services that are prohibited, including contraception. At the political level, legislation enacting 

refusal clauses impose restrictions unrelated to health and safety on women's ability to access 

reproductive health care services. These restrictions are driven by political ideology, electoral 

politics, and other political considerations that have nothing to do with evidence-based medicine. 

G. HRSA'S PROPOSED RELIGIOUS EMPLOYER EXEMPTION WOULD 

UNDERMINE WOMEN'S HEALTH, WELL-BEING, AND AUTONOMY. 

Statutory refusal clauses that impede women's access to contraceptive counseling and 

services jeopardize women's health and well-being, and rob women of their autonomy. HRSA's 

proposed religious employer exemption, 45 C.F.R. § 147.l30(a)(I)(iv)(A)-(B), which allows 

certain employers to deny women access to effective, necessary, and desired preventive health 

care, unreasonably impedes the ability of a woman to obtain appropriate and timely medical care, 

limits the availability of health care services to affected women, and violates standards of care. 

HRSA's proposed exemption would permit employers to impose their religious doctrines on 

women who do not share them and at the expense of affected women's health. The clause gives 

institutions the right to make health care decisions-based on ideology, not science-about and 

for an individual woman. 

Most women are covered by health insurance offered by their employer. 57 According to 

a 1998 Guttmacher Institute study, while three-fourths of American women of reproductive age 

rely on private insurance, the extent to which they have contraceptive coverage can differ 

dramatically depending on their type of insurance. 58 The Affordable Care Act recognizes the 

importance of preventive services to the health and well-being of individuals, their families and 

their communities. Preventive services are required to be covered without cost-sharing in order 

to ensure that all foreseeable barriers to access to preventive services are removed. Allowing 

employers or insurers to erect new barriers in the form of refusal clauses vastly undermines the 

promise of the ACA to improve the health of the nation. 

All employers should be required to provide coverage for contraception without costsharing. Requiring all employers-including religious employers-to provide contraceptive 

insurance coverage does not force the employer to use, or even to condone, contraceptive use. 

Nor does requiring all entities to provide insurance coverage of health care services vital to a 

woman's health and well-being impinge on the conscience rights of individual providers. 

Allowing an employer, however, to refuse to cover contraception creates substantial barriers to 

affected women's ability to prevent pregnancy, and subordinates an affected woman's health 

needs-and her autonomy-to her employer's ideological beliefs. All women, regardless of 

where they work, should have access to the care they need. Every woman should be able to 

57 Usha RMji & Alina Salganicoff, The Henry 1. Kaiser Family Foundation, Women 'J Health Care Char/book: Key 

F'indingJfrom lhe Kaiser Women's Health Survey 10 (2011), http://www.kff.orglwomenshealthluploadl8164.pdf. 

" Rachel B. Gold, The Needfor and Cost 0/ Mandating Private Insurance Coverage a/Contraception, The 

Guttmacher Report on Pub. Policy 5-6 (Aug. 199B), http://www.guttmacher.orgipubsltgr/O!l4/grlll0405.pdf. 
113 


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Testimony of the National Health Law Program 

Page 10 of 11 

November 2,2011 

make her own decisions about whether or when to prevent pregnancy based on her own beliefs, 

not the beliefs of her employer. 

H. H.R. 1179 WOULD DANGEROUSLY EXPAND RELIGIOUS REFUSALS. 

H.R. 1179, misleadingly titled "Respect for Rights of Conscience Act of2011," is an 

extreme and far-reaching refusal provision. H.R. 1179 introduces broad, poorly defined and 

confusing language, and fails to account for the significant burdens that broad refusals have on 

patients. These are burdens that fall disproportionately and most harshly on low-income women, 

severely impacting their health outcomes and their ability to give informed consent for medical 

care. There are already ample statutory protections for health care providers who object to 

providing certain services based on their religious or moral beliefs in existing law, which seeks 

to establish a delicate balance between protecting health care providers and meeting the needs of 

patients. 

H.R. 1179 dangerously expands what a health plan or provider can refuse to do. First, it 

provides that a health plan could refuse to provide coverage (or, in the case of a sponsor ofa 

group health plan, paying for coverage) "of such specific items or services" based on its 

"religious beliefs or moral convictions." Similarly, it requires that an individual be able to 

purchase a policy that does not contain any "specific items or services" which, are contrary to the 

"religious beliefs or moral convictions of the purchaser or beneficiary of the coverage." Under 

H.R. 1179, a health plan could refuse to provide coverage for virtually any service otherwise 

required by the ACA. Corporations could, for example, refuse to cover screening and counseling 

for HlV and other sexually transmitted infections. H.R. 1179 would undermine access to 

essential health services, and create significant and unreasonable barriers for patients seeking 

access to vital health care. 

Second, H.R. 1179 states that the ACA does not obligate an "individual or institutional 

health care provider, or authorize a health plan to require a provider, to provide, participate in, or 

refer for a specific item or service contrary to the provider'S religious beliefs or moral 

convictions.,,59 The law suggests that virtually any worker, paid or volunteer, in any health care 

setting can refuse to assist in the perfonnance of any health care service or in any health care 

program. The law also is unclear as to whether a worker can assert his or her moral belief in 

refusing to treat a particular patient. Can a technician refuse to participate in dialysis for an 

alcoholic? Can someone opposed to blood transfusions refuse to change a patient's hospital 

gown? Can a health provider refuse to treat a patient who is gay or lesbian? The law is subject 

to misuse and abuse by creating a health care environment that invites large numbers of workers 

and health professionals to refuse to participate in the orderly delivery of health care services. 

* *. *'. 

"H.R. 1179 also states that a health plan has not "tailed to provide timely or access to items or services ... or fulfill 

any other rcquircmentn under the ACA because it has "respected the rights of conscience" of a "provider," 
114 


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Testimony of the National Health Law Program 

Page 11 of 11 

November 2, 2011 

Refusal clauses and denials of care should be evaluated using the same measurements 

used to evaluate quality generally, with the goal of providing care that is evidence-based, patientcentered, and preventative. All women should have access to the health care services they need 

based on medical evidence, their personal health needs, and their own beliefs. Employers, 

insurers, and hospital corporations should not be allowed to impose their ideology on women. 

For more information or questions, please contact Susan Berke Fogel, Director of 

Reproductive Health at fogel@healthlaw.org or 818.621. 7358. 

Thank you. 
115 


75050.105

PHYSICIANS FOR 

I 

REPRODUCTIVE 

CHoler ,,,HrALTH 

Headquarters: 

55Wes!3%' Stn:£: 

New'(ork. NY WJIR·'.;iltn 

TeJ-ti46-366-iSQD 

r~x. 645 300,1697 

Additional J.outiofts: 

CA 

wwwprchnrg 

.\U) 

Testimony of Douglas Laube, MD, MEd 

Board Chair, Physicians for Reproductive Choice and Health 

Submitted to the House Energy and Commerce Committee 

Subcommittee on Health 

November 2, 2011 

Physicians for Reproductive Choice and Health (PRCH) is a doctor-led 

national advocacy organization that relies upon evidence-based medicine to 

promote sound reproductive health policies. PRCH welcomes the opportunity 

to submit testimony to the House Energy and Commerce Subcommittee on 

Health for the hearing entitled "Do New Health Law Mandates Threaten 

Conscience Rights and Access to Care?" 

PRCH supports the recent recommendation of the Institute of Medicine (10M) 

to include contraception in the preventive health benefitsl for women under 

the Patient Protection and Affordable Care Act (ACA)2 and the decision of the 

Department of Health and Human Services (HHS) to adopt this 

recommendation in its draft regulations.3 As physicians, we know that access 

to contraception is essential to the health and well-being of our patients. 

About half of all pregnancies in the United States are unintended.' Regular 

use of contraception prevents unintended pregnancy and reduces the need for 

abortion. S Contraception also allows women to determine the timing and 

spacing of pregnancies, protecting their health and improving the well-being 

of their children.6 Contraceptive use saves money by avoiding the costs of 

unintended pregnanc~ and by making pregnancies healthier, saving millions in 

health care expenses. Several contraceptives also have non-contraceptive 

health benefits, such as decreasing the risk of certain cancers and treating 

I Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 

2011). 

1 Patient Protection and Afford.ble Care Act, Pub. L. No. 111·148 (Mar. 23. 2010) and Health 

Care and Education Reconciliation Ac~ Pub. L. 111-152 (Mar. 30, 2011). 

3 Group Health Plans a.nd Health Insurance Issuers Relating to Coverage of Preventive 

Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621 (proposed 

Aug. 3, 2011) (to be codified at 45 CPR Part 147). 

4 Finer LB, Kost K. "Unintended pregnancy rates at lhe state leve1." Perspectives on Sexual 

and Reproductiye Health 

2011;43:78·87. 

'Deschner, A., Cohen, S.A. (2003). "Contraceptive Use Is Key to Reducing Abortion 

Worldwide." The Guttmacher R~port on Public Policy 6(4): 7·10. 

6 Testimony of the Guttmacher Institute, submitted to the Committee on Preventive Services 

for Women, Institute of Medicine, 201 I, available fOT download at 

http://www.gultmacher.orglpubs/CPSW~testimonv. pdf. 

7 Gold, R.B. (20 11). ''Wise Investment Reducing the Steep Cost to Medicaid of Unintended 

Pregnancy in the United States." Guttmacher Policy Review 14(3): 6·10. 
116 


75050.106

debilitating menstrual problems.s Making contraception more affordable is a significant step 

forward for the health of women and their families. 

PRCH appreciates the decision of HHS to include in the draft regulations the coverage of all 

forms of birth control,9 allowing patients to access to the method that best meets their needs. 

Contraceptive methods vary and women with their health care providers need to be free to 

select from the full range of FDA-approved contraceptives. Not all contraceptives are 

clinically appropriate for every woman. 10 We also know that women and couples are more 

likely to use contraception successfully when they are given their contraceptive method of 

choice, be it a birth control pill, a vaginal ring, or an intrauterine device (IUD).ll The draft 

regulations hold the promise of making contraception more affordable and easier to access 

for millions of women. 

While we strongly support the inclusion of contraception as preventive care. we are deeply 

troubled by the provisions that exempt certain employers from compliance. The draft 

regulations threaten to compromise the very important protections they would put in place. 

As physicians who care for patients who may be deprived of the affordable contraceptive 

coverage that all women deserve. we outline our concerns in the comments below. 

I. Women employed by religious employers should be ensured the same preventive 

reproductive health care coverage as aU other women. 

The draft regulations allow certain religious employers to refuse to provide access to 

essential reproducti ve health care coverage for contraception. 12 That means that some 

women, because they work for religious employers that fail to allow this benefit, will be 

denied access to affordable birth control coverage. That is grossly unfair to these women, and 

from a medical perspective would constitute indefensible health policy. All women deserve 

access to affordable birth control-an important component of preventive health care, as the 

Department and the 10M have recognized-no matter where they work. 

& Burkman, R., Schlesselman, J.J., Zieman, M (2004). "Safety concerns and health benefits associated with oral 

contraception:' American Journal of Obstetrics and Gynecology 190(4): S5-22. 

• The draft regulations properly include foons of emergency contraception in the birth control coverage 

provisions. Some groups have claimed this is a violation of federal law, arguing that emergency contraception is 

an abonifacient. This is medically inaccurate. Emergency Contraception. Practice Bulletin No. 112. American 

College of Obstetricians and Gynecologists. Obstet GynecoI201O;115:11@-9. 

10 Bonnema, R.A., McNamara, M.C., Spencer, A.L. (2010). "Contraception choices in women with underlying 

medical conditions." American Academy of Family Physicians 82(6): 612-8. 

II Frost, J. J. and J. E. Darroch (2008). "Factors Associated with Contraceptive Choice and Inconsistent Method 

Use, United States, 2004." Perspectives on Sexual & Reproductive Health 40(2): 94-104. 

12 The Interim Final Rules define an employer that can invoke the exemption as one that: 

(I) Has the inculcation of religious values as its purpose; 

(2) primarily employs persons who share its religious tenets; 

(3) primarily serves persons who share its religious tenets; and 

(4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. 

Section 6033(a)(3)(A)(i) and (iii) refer [0 churches, their 

integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious 

activities of any religious order. 
117 


75050.107

Some of the most vocal opposition to the inclusion of birth control as a preventive service 

comes from the United States Conference of Catholic Bishops (USCCB).13 It is worth noting 

that virtually all women, including 98 percent of Catholic women, use contraception at some 

point during their lifetimes. 14 Moreover, the decision to use birth control should be left to the 

individual. Employers should not have the power to interfere in private health care decisions 

by withholding coverage for care. A key promise of the ACA is that women will no longer be 

subjected to extra charges for necessary preventive prescriptions and treatments. Birth 

control should not be treated any differently. Employers should remain entirely free to 

express their opposition to birth control, but that opposition should never translate into 

substandard preventive medical care coverage. 

One of our physicians had a patient we will call Susan. 15 Susan worked in administration at a 

Catholic Archdiocese and her employer provided health insurance that did not cover 

contraception because of the employer's belief that birth control is immoral. Susan was in a 

relationship and did not want to become pregnant. Her partner refused to use condoms and 

the burden to prevent pregnancy fell on her. Because of her high blood pressure, Susan could 

not take birth control pills, and she and her doctor decided that an IUD was her best 

preventive health care option. But Susan could not afford the hundreds of dollars for the 

device and insertion. She went without any birth control, became pregnant and then had an 

abortion that should have never become necessary. 

Susan was a victim of second-class preventive medical care. Susan and women in similar 

employment situations deserve access to affordable contraception. As physicians, we believe 

that medical evidence should govern healthcare and that every one of our patients should 

have access to high quality preventive reproductive health services. 

II. Women employed by organizations affiliated with religious institutions should be 

assured access to the same preventive reproductive health care coverage as all 

other women. 

Opponents of contraceptive coverage without co-rcays have argued for an expansion of 

employers who could refuse to provide coverage. 6 ln their view, hospitals and social service 

agencies should have the ability to deny preventive reproductive health care coverage for 

their employees. These exclusions of care translate into significant hardships for our patients. 

Broadening the definition of a religious employer would make an already medically unsound 

policy even worse, depriving more women of essential preventive coverage. 

13 "HHS Mandate for Contraceptive and Abortifacient Drugs Violates Conscience Rights," USCCB press 

release, August I, 20 II. See also. comments from USCCB submitted \0 the Centers for Medicare & Medicaid 

Services, August 31, 2011. 

14 Jones. R.K. and Joerg Dreweke, "Countering Conventional Wisdom: New Evidence on Religion and 

Contraceptive Use," Guttmacher Institute, April 2011. Among all women who have had sex, 99% have used a 

contraceptive method other than natural family planning. 

" Names of patients have been changed to protect privacy. 

(6 In their August 1 press release, £!!I![!. note 13, USCCB noted their displeasure with the interim rules stating 

"Although this new rule gives the agency the discretion to authorize a 'religious' exemption, it is so narrow as 

to exclude most Catholic social service agencies and health care providers." 
118 


75050.108

One of our physicians has a patient we will call Melanie. Melanie has worked for many years 

as an emergency room nurse at a Catholic hospital. She wanted a long-acting, reversible 

contraceptive, specifically an IUD. But the hospital's health insurance did not cover birth 

control. Melanie paid for birth control pills out-of-pocket, but she had experienced an 

unintended pregnancy while on the pill and knew that an IUD would be more effective. 

However, Melanie could not afford the nearly one thousand dollars for the IUD and its 

insertion. Instead, Melanie obtained an IUD from a nearby study of a new, experimental type 

of IUD. Her need for an IUD plainly outweighed her worries about using a contraceptive 

without FDA approval. 

Another one of our physicians has a patient we will call Kristen. Kristen worked as a nursing 

assistant at a Catholic hospital. Like Melanie, her insurance did not cover contraception. 

Kristen, who is not Catholic, did not know about this policy until after she started working at 

the hospital. When Kristen first refilled her prescription for birth control pills, she discovered 

that she would need to pay fifty dollars per month, a new expense for which she had not 

budgeted as her last employer had covered contraceptives. Kristen was able to afford her 

prescription for a few months, but could not continue. She later had an unintended pregnancy 

and needed an abortion. 

Yet another one of our physicians takes care of many women who are employees and 

students at a large, well respected, Catholic college. These women have no objections to birth 

control-they are either not Catholic, or among the ninety-eight percent of Catholic women 

who have used birth control. Most have no idea their insurance does not cover birth control 

pills or any other contraceptive until they begin working or studying there. When they find 

out, some panic because they cannot afford the full cost. I

? These amounts can be prohibitive 

for a student or family on a budget. The college educates and employs thousands of women; 

they should not be denied affordable birth control as a condition of studying or working 

there. 

As illustrated by our colleagues, it is important to the health of patients that affordable 

preventive reproductive health coverage be available to every woman in the American 

workforce without regard to the reproductive health position of their employers. 

III. All women deserve access to contraceptives prescribed for purposes other than 

birth control in addition to family planning. 

Several states make clear that religious exceptions for contraceptive coverage do not apply to 

contraceptives that are prescribed for purposes other than birth control. For example, 

California mandates that employers, including religious employers, cover birth control when 

prescribed for the purposes oflowering the risk of ovarian cancer, eliminating symptoms of 

menopause, or for prescription contraception necessary to preserve the life or healthI8 of an 

" For instance, per year, the pill ranges from $180 to $600 out of pocket, the vaginal ring from $180 to $840. 

An IUD, which lasts much longer and saves money over time, requires an initial investment of $500 to $1,000. 

18 An unintended pregnancy may have significant implications for a woman's health, sometimes worsening a 

preexisting health condition such as diabetes, hypertension, or coronary artery disease. Institute of Medicine, 

supra note I. 
119 


75050.109

insured woman. 19 Honnonal birth control, in addition to preventing unintended pregnancies, 

helps address several menstrual disorders, helps prevent menstrual migraines, treats pelvic 

pain from endometriosis, and treats bleeding from uterine fibroids. 2o Oral contraceptives 

have been shown to have long-tenn benefits in reducing a woman's risk of developing 

endometrial and ovarian cancer, and short-tenn benefits in protecting against colorectal 

cancer?IAli women, including women who have religious employers, women in ministerial 

roles, and women employed by organizations affiliated with religious institutions need 

insurance coverage that will cover effective treatments, including honnonal contraception, 

for these conditions. The acceptance of inadequate health care coverage should not be a 

condition of working for a religious employer or agency. 

IV. Conclusion 

The Centers for Disease Control and Prevention recognized family planning as one of the 

singular public health achievements of the twentieth century.22 Yet the proposed "Respect for 

Rights of Conscience Act of 2011" (H.R. 1179) would allow companies a broad right to 

deprive women and their families of necessary medical coverage and services such as 

contraception. It elevates the "consciences" of corporations above the needs of individual 

patients, allowing a business entity to make personal, private decisions that should be left to 

women and their families. H.R. 1179 would have extreme consequences - not only allowing 

the refusal of care, but even coverage to people or groups that a corporation finds 

objectionable. This is medically unacceptable. 

The ACA holds the promise of expanding health care coverage for millions of Americans 

and ensuring that all of our patients live healthier lives. Allowing religious employers and 

organizations affiliated with them to interfere with the personal reproductive health care 

decisions of their employees is poor public health policy that could harm too many American 

women and families. 

19 Cal. Health & Safety Code §1367.25(b)(2)(c) (enacted 1999): "Nothing in this section shall be construed to 

exclude coverage for prescription contraceptive supplies ordered by a health care provider with prescriptive 

authority for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or 

eliminating symptoms of menopause, or for prescription contraception that is necessary to preserve the life or 

health of an enrollee." 

2D Burkman, ~ note 8. 

21 Id. 

22 Centers for Disease Control and Prevention, "Achievements in Public Health 1900-199: Family Planning," 

MMWR Weekly, December 03.1999.48(47);1073-1080. 
120 


75050.110

November 2, 2011 

Chairman Fred Upton 

Committee on Energy and Commerce 

United States House of Representatives 

Washington, D.C. 20515 

Chairman Joe Pitts 

Energy and Commerce Subcommittee on Health 

United States House of Representatives 

Washington, D.C. 20515 

Ranking Member Henry Waxman 

Committee on Energy and Commerce 

United States House of Representatives 

Washington, D.C. 20515 

Ranking Member Frank Pallone, Jr. 

Energy and Commerce Subcommittee on Health 

United States House of Representatives 

Washington, D.C. 20515 

Dear Chairmen Upton and Pitts and Ranking Members Waxman and Pallone: 

As advocates for young people's health and rights and students currently attending religious affiliated colleges 

and universities, we are pleased that the Department of Health and Human Services adopted the Institute of 

Medicine's recommendations laid out in "Clinical Preventive Services for Women: Closing the Gaps." These 

recommendations are an important step forward in women's health and well-being. We are especially excited 

to see that starting in August of 2012, just before school starts, women will be able to access all FDA approved 

methods of contraception available on their private health plans, without a co-pay. 

However, we are concerned by statements made by certain organizations and members of Congress that wish 

to undo this important advancement. 

According to the recent report "TECHsex USA: Youth Sexuality and Reproductive Health in the Digital Age: 

birth control is one of the most important health issues for young women.' The United States has one of the 

highest teen pregnancy rates in the developed world with 71.5 pregnancies per 1000 women ages 15-19. That 

number is nearly three times that of Germany and France and four times the rate In the Netherlands.2 In 20-24 

year olds, more than half of all pregnancies are unintended.' According to the Guttmacher Institute, 

unintended pregnancies cost the United States $11.1 billion in 2006.' 

Contraception is a basic part of women's health care. The Centers for Disease Control and Prevention states 

that more than 98 percent of U.S. women between the ages of 15 and 44 who have ever had sexual 

intercourse with a male have used at least one contraceptive method before. However, there are many 

barriers to accessing contraception, especially among young women. In a review published by the National 

Campaign to Prevent Teen and Unplanned Pregnancy, cost was cited as one of many barriers faced by young 

1 Boyar, R, Levine, D. Zensius, N. TECHsex USA: Youth Sexuality and Reproductive Health in the Digital Age. Oakland, CA: ISIS, Inc. April, 

2011. 

2 Advocates for Youth. (March 2011). Adolescent Sexual Health In Europe and the us. Retrieved from 

http://www.advQcatesforvouth.org/publications/419Jtask=view September 20,2011. 

3 Ibid. 

4 Sonfield, A, Kast, K. Gold, R. B. and Finer, L.B. (20ll), The Public Costs of Births Resulting from Unintended Pregnancies: National and 

State*Level Estimates. Perspectives on SeICual and Reproductive Health, 43: 94-102, Doi: 10, 1363/4309411 
121 


75050.111

women and adolescents when attempting to access contraception.' In fact, a recent study published in 

Contraception found that young women are significantly more likely than women of all ages to pay higher outof-pocket costs for birth control and are less likely to buy multiple packs of pills at a time.' 

Despite some limited success, the reality is that, even today, women with health insurance still do not have the 

ability to access the contraception they need because it is left up to individual health plans to decide which 

methods of contraception to cover or whether to even cover contraception at all. 

The new preventive health guidelines serve to help resolve this issue; however, we are concerned that the 

religious exemption language may be expanded to prevent more women, and young women in particular, 

from accessing these services. 

Deference to the conscience of others is fundamental to religious freedom. While we respect individuals' 

choices and their consciences, claims that refusal clauses are needed for institutional employers are 

indefensible. The availability of contraception in no way compels those who oppose it to use it. Individuals 

with religious conflicts can simply exercise their right not to access contraception. The conscience otone 

individual or one institution cannot, and must not, override a woman's basic right to necessary and timely 

medical care. 

We have heard from too many young people who attend Catholic universities who have either had to lie to 

their doctor about their reason for accessing contraception (non-contraceptive purposes), or use local family 

planning clinics with already stretched resources, to access birth control. 

"When I was a student at Georgetown Law, I watched women lie to their doctors about 

needing birth control for non-contraceptive reasons. This is just wrong. Students shouldn't be 

limited by their school's religious beliefs, especially when colleges are offering secular 

education to students of ali faiths." 

"I attended Boston College for law school and was denied contraception through the student 

health services. This must change." 

"I am a student at Georgetown Law, and I am forced to go to Planned Parenthood to receive 

basic health care, as my insurance doesn't cover birth control pills. If I have a question or a 

problem with my medication, I can't ask my Georgetown doctor. It is absolutely outrageous 

that young, old, single, and married women alike at Georgetown law cannot get basic health 

services." 

"I went to a Catholic university, and saw first hand the terrible impact a lack of birth control 

had on the students. It doesn't stop college students from having sex. It just makes them think 

it's okay to do so unsafely." 

S National Campaign to Prevent Teen and Unplanned Pregnancy. (2009). Unlocking the Contraception Conundrum. Retrieved 

September 29,2011, from http://www.thenationalcampaign.org/resources!pdf/pubs!Unlacking Contraceptive.pdf 

6 Contraception, 2011 Jun;83(6):S2B-36. Epub 2010 Nov 6. Women's out-of-pocket expenditures and di.spensing patterns fafara! 

contraceptive pills between 1996 and 2006. 
122 


75050.112

In fact, in 2009, almost 90% of students at Boston College voted for changes to the school's sexual health 

education and resources. By voting for this referendum, the large majority of students called for not only 

prescriptions for contraception from their student health services, but also the availability of condoms on 

campus.' Almost 70% of students at Boston College identify as Catholic, and like the majority of Catholics 

nation-wide, they support access to contraception. 

The fact remains that, "Among all women who have had sex, 99 percent have ever used a contraceptive 

method other than natural family planning. This figure is virtually the same, 98 percent, among sexually 

experienced Catholic women:· When almost 80 percent of unmarried young women between the ages of 20 

and 24 have had sex, access to contraception cannot be ignored. Women should not be punished for making 

the responsible decision to access contraception when they wish to prevent an unintended pregnancy. We 

encourage you to stand with young women and ensure that they have access to contraception, regardless of 

where their private health insurance comes from. 

Sincerely, 

Advocates for Youth 

Washington, DC 

American Medical Student Association 

Reston, VA 

Campus Progress 

Washington, DC 

DC Federation of College Democrats Women's Caucus 

Washington, DC 

Generational Alliance 

Washington, DC 

Law Students for Reproductive Justice 

Oakland, CA 

Spiritual Youth for Reproductive Freedom 

Washington, DC 

All Education Matters 

Nationwide 

80ston College Students for Sexual Health 

Chestnut Hill, MA 

Choice USA 

Washington, DC 

Feminist Majority Foundation 

Arlington, VA 

H ·yas for Choice 

Washington, DC 

Medical Students for Choice 

Philadelphia, PA 

7 Sweas, Megan. (8 March 2009). Students vote for expand'e~ sex ed resources at Boston College. U. S. Catholic Retrieved from: 

http://www,uscatho!jc,orgllifeI2QQ9/03/stud~nts~vote~expanded-sex-ed-resources-bo.ston-college 

II Jones RK and Dreweke J, Countering Conventional Wisdom: New Evidence an Religion and Contraceptive Use~ New York: Guttmacher 

Institute, 2011. 
123 

Mr. PITTS. The Chair now is pleased to welcome the panel of witnesses to our hearing today. We would ask them to please take 

their seats at the witness table. And I will introduce them at this 

time. 

Today, our witness panel includes David Stevens, CEO of the 

Christian Medical Association; Mark Hathaway, Director of OB/ 

GYN Outreach Services for Women’s and Infants’ Services at 

Washington Hospital Center and Title X Medical Director at the 

Unity Healthcare, Inc.; Jane Belford, Chancellor and General 

Counsel of the Archdiocese of Washington; Jon O’Brien, President 

of Catholics for Choice; and Bill Cox, President and CEO of the Alliance of Catholic Health Care. 

We are happy to have each of you here today and ask that you 

summarize your statements in 5 minutes. We will enter your written testimony into the record. 

And at this point, we will start with Dr. Stevens. You are recognized for 5 minutes. 

STATEMENTS OF DAVID L. STEVENS, CHIEF EXECUTIVE OFFICER, CHRISTIAN MEDICAL ASSOCIATION; MARK HATHAWAY, 

DIRECTOR, OBSTETRICS AND GYNECOLOGY OUTREACH 

SERVICES FOR WOMEN’S AND INFANTS’ SERVICES, WASHINGTON HOSPITAL CENTER; JANE G. BELFORD, CHANCELLOR, ARCHDIOCESE OF WASHINGTON, DC.; JON O’BRIEN, 

PRESIDENT, CATHOLICS FOR CHOICE; AND WILLIAM J. COX, 

PRESIDENT AND CHIEF EXECUTIVE OFFICER, ALLIANCE OF 

CATHOLIC HEALTH CARE 

STATEMENT OF DAVID L. STEVENS 

Mr. STEVENS. I am testifying on behalf of the over 16,000 members of the Christian Medical Association, a professional membership organization that helps healthcare professionals to integrate 

their faith and their profession. I am a diplomat of the American 

Board of Family Medicine and hold a master’s degree in bioethics. 

Our members include physicians who hold a range of conscience 

convictions on controversial ethics and moral issues, including contraception, healthcare reform, participation in the death penalty, 

and other conscience issues that span the political spectrum. 

Virtually all medical professionals and student members we recently surveyed say it is ‘‘important to personally have the freedom 

to practice healthcare in accordance with the dictates of his or her 

conscience.’’ Over 9 of 10 say they would not prescribe FDA-approved contraceptives that might cause the death of a developing 

human embryo. 

Many physicians today conscientiously profess allegiance to lifeaffirming ethical standards such as the Hippocratic Oath. Pro-life 

patients want to retain the freedom to choose physicians whose 

professional judgments reflect their own life-affirming values. 

The Health and Human Services interim final regulation would 

force insurance plans nationwide to cover all Food and Drug Administration-approved contraceptive methods and sterilization procedures. This mandate does not exempt controversial drugs such as 

Ella and the morning-after pill, which according to the FDA have 

124 

post-fertilization effects that may inhibit implantation of a living 

human embryo. 

The potential religious exemption in the contraception mandate—exempting only a nano-sector of religious employers from the 

guidelines—is meaningless to conscientiously objecting healthcare 

professionals, insurers, and patients. The contraception mandate 

can potentially trigger a decrease in access to healthcare by patients in medically underserved regions and populations. 

The administration’s policies on the exercise of conscience in 

healthcare, including the gutting of the only Federal conscienceprotecting regulation, actually threaten to worsen a growing physician shortage. A national survey of over 2,100 faith-based physicians revealed that over 9 of 10 are prepared to leave medicine over 

conscience rights. Eighty-five percent of our medical professionals 

and students say that the policies that restrict the exercise of conscience in healthcare make it less likely they will practice 

healthcare in the future. 

The contraception mandate further contributes to an increasingly 

hostile environment in which pro-life physicians, residents, and 

medical students face discrimination, job loss, and ostracism. Seventy-nine percent of our members surveyed said the new contraception mandate will have a negative impact on their freedom to practice medicine in accordance with the dictates of their conscience. 

One out of five faith-based medical students surveyed said they 

will not go into OB/GYN as a specialty because of abortion-related 

pressures. 

The contraception mandate creates a climate of coercion that can 

prompt pro-life healthcare professionals to limit the scope of their 

medical practice. Over half of the medical professionals and students we surveyed said the new contraception mandate might 

cause them to restrict their practice of medicine. 

The contraception mandate can potentially cause a decrease in 

the provision of health insurance for employees of pro-life 

healthcare employers who want to avoid conflicts of conscience regarding controversial contraceptives. Sixty-five percent of the medical professionals and students we surveyed said the contraception 

mandate will make them less likely to provide insurance for their 

employees. 

The contraceptive mandate rule sweepingly tramples conscience 

rights, which have provided a foundation for the ethical and professional practice of medicine. The administration should rescind this 

mandate entirely for the ethical and practical reasons I have noted 

and also for the constitutional and statutory reasons outlined in 

our official comment letter of September 29 to HHS, which I am 

submitting separately and ask to be included in the record. 

We encourage Members of Congress to uphold conscience rights 

by passing the Respect for Rights of Conscience Act. Upholding a 

respect for conscience and our First Amendment freedoms protects 

all Americans, conservatives and liberals, capitalists and socialists, 

atheists and people of faith. 

Thank you for your consideration of these views. 

[The prepared statement of Mr. Stevens follows:] 

125 


75050.113

Written Statement by 

David L. Stevens, MD, MA (Ethics) 

CEO 

Christian Medical Association 

Committee on Energy and Commerce, Subcommittee on Health 

United States House of Representatives 

November 2,2011 

Re: U.S. Dept. of Health and Human Services (HHS) preventive services rule 

Summary of arguments 

I. The potential "religious exemption" in the contraception mandate--exempting only a 

nano-sector of "religious employers" from the guidelines--is meaningless to 

conscientiously objecting health care professionals, insurers and patients. 

2. The contraception mandate can potentially trigger a decrease in access to health care 

by patients in medically underserved regions and populations. 

3. The contraception mandate further contributes to an increasingly hostile environment 

in which medical students, residents and graduate physicians face discrimination, job loss 

and ostracism for holding pro-lifc views on abortion, controversial contraceptives and 

other eth ical issues. 

4. The contraception mandate creates a climate of coercion that can prompt pro-life health 

care professionals to limit the scope of their medical practice and can discourage pro-life 

medical students and residents from choosing careers in Family Medicine, Obstetrics and 

Gynecology and other specialties likely to involve conflicts of conscience. 

5. The contraception mandate can potentially cause a decrease in the provision of health 

insurance for employees of pro-life health care employers who want to avoid conflicts 

of conscience regarding the subsidy and implied endorsement of controversial 

contraceptives. 

David Stevens, MD Christian Medical Association Page I of8 
126 


75050.114

Testimony 

Mr. Chairman, I am testifying on behalf of the over 16,000 members of the Christian Medical 

Association, a professional membership organization that helps healthcare professionals to 

integrate their faith and profession and to care for patients according to longstanding ethical and 

moral principles. I am a Diplomate ofthe American Board of Family Medicine and hold a 

master's degree in bioethics. 

Our members include physicians who hold a range of conscience convictions on controversial 

ethical and moral issucs including contraception, health care refonn, participation in the death 

penalty, and other conscience issues that span the left-right political spectrum. 

Virtually all medical professionals and student members we recently surveyed' say it is 

"important to personally have the freedom to practice health care in accordance with the 

dictates of[his or her] conscience." 

Even more spccific to our topic today, over nine of ten say they "would not prescribe 

FDA-approved contraceptives that might cause the death of a developing human 

embryo." 

The principle of physicians practicing profcssional judgment regarding both medical options and 

ethical standards is neither novel nor new; in fact, it has guided the practice of medicine for 

millennia. 

Many physicians today conscientiously profess allegiance to lifc-affinning ethical standards such 

as the Hippocratic oath, which was first adopted over two millennia ago to protect the interests of 

patients and establish objective professional standards. It is espccially important today for prolife patients to retain the frccdom to choose physicians whose professional judgments rellect the 

patient's own life-affirming values. 

David Stevens, MD Christian Medical Association Page 2 of 8 
127 


75050.115

The HHS interim final regulations would force insurance plans nationwide to cover "all Food 

and Drug Administration approved contraceptive methods, sterilization procedures, and patient 

education and counseling/or all women with reproductive capacity. " 

The contraception mandate does not exempt controversial drugs such as Ella and the "morningafter pill," which according to the FDA have post-fertilization effects that "may inhibit 

implantation" of a living human embryo. That is an issue of weighty moral concern for many 

pro-life and faith-based health care professionals, individuals and groups. 

The potential "religious exemption" in the contraception mandate--exempting only a nano-sector 

of "religious employers" from the guidelines--is meaningless to conscientiously objecting health 

care professionals, insurers and patients. 

The HHS rule implementing provisions of the Patient Protection and Affordable Care Act fits a 

pattern of this administration's extremely narrow and limiting view of conscience rights. The 

HHS rule has the potential to negatively impact patients and health care professionals in the 

following ways: 

I. The contraception mandate can potentially trigger a decrease in access to health care 

by patients in medically underserved regions and populations. 

The New York Times" reports that "Health policy experts have long expressed 

concern about a shortage of primary care doctors, including family physicians and 

internists. The shortage, they say, could become more serious if, as President 

Obama hopes, more than 30 million people gain insurance coverage under the 

health care law passed last year." 

David Stevens, MD Christian Medical Association Pagc 3 of8 
128 


75050.116

Ironically, the administration's own policies on the exercise of conscience in 

health care, including the gutting of the only federal conscience-protecting 

regulation, actually threaten to worsen the physician shortage. 

• A national survey'" of over 2,100 faith-based physicians revealed that over nine of 

ten are prepared to leave medicine if pressured to compromise their ethical and 

moral commitments. 

• The recent survey of our members revealed that 85 percent of medical 

professionals and students said that "policies that restrict the exercise of 

conscience in health care" make it less likely that they will "practice health care in 

the future." 

2. The contraception mandate further contributes to an increasingly bostile environment 

in which medical students, residents and graduate physicians face discrimination, job loss 

and ostracism for holding pro-life views on abortion, controversial contraceptives and 

other ethical issues. This administration's gutting of the only conscience-protecting 

federal regulation only serves to reinforce such intolerance. 

Seventy-nine percent of our members surveyed said the new contraception 

mandate will have a negative impact on their "freedom to practice medicine in 

accordance with the dictates of [their] conscience." 

3. The contraception mandate creates a climate of coercion that can prompt pro-life health 

care professionals to limit the scope of their medical practice and can discourage pro-life 

medical students and residents from choosing careers in Family Medicine, Obstetrics and 

Gynecology and other specialties likely to involve conflicts of conscience. 

David Stevens, MD Christian Medical Association Page 40f8 
129 


75050.117

• Over half of the medical professionals and students we surveyed said the "new 

contraception mandate might cause [them] to restrict [their] practice of medicine." 

• One out offive faith-based medical students surveyed say they will not go into an 

Ob-Gyn specialty because of abortion-related pressures. 

4. The contraception mandate can potentially cause a decrease in the provision of health 

insurance for employees of pro-life health care employers who want to avoid conflicts 

of conscience regarding the subsidy and implied endorsement of controversial 

contraceptives. 

Sixty-five percent of the medical professionals and students we surveyed said the 

contraception mandate will make them "less likely to provide insurance for their 

employees." 

The contraceptive mandate rule sweepingly tramples conscience rights, which have not only 

provided a foundation for American civil liberties but also a foundation for the ethical and 

professional practice of medicine. 

The administration should rescind this mandate entirely, for the ethical and practical reasons I 

have noted that especially impact faith-based and pro-life health care professionals and patients. 

The rule should also be rescinded for the constitutional and statutory reasons outlined in our 

official comment letter of September 29 to HHS, which I am submitting separately and ask to be 

included in the record. 

We encourage Members of Congress to uphold conscience rights by passing the Respect for 

Rights of Conscience Act, which will ensure that 

"health care stakeholders retain the right to provide, purchase, or 

enroll in health coverage that is consistent with their religious 

beliefs and moral convictions, without fear of being penalized or 

David Stevens, MD Christian Medical Association Page 5 of8 
130 


75050.118

discriminated against and to ensure that no requirement in [the 

new health care law] creates new pressures to exclude those 

exercising such conscientious objection from health plans or other 

programs.". !l 

Upholding a respect for conscience and our First Amendment freedoms protects all Americans: 

conservatives and liberals, capitalists and socialists, atheists and people offaith. 

Thank you for your consideration of these views. 

David Stevens, MD Christian Med ical Association Page 6 of 8 
131 


75050.119

Addendum 

September 29, 2011 - Submitted Electronically 

Centers for Medicare & Medicaid Services 

Department of Health and Human Services 

Attn: CMS-9992-IFC2 

PO Box 8010 

Baltimore, Maryland 21244-80 I 0 

Re: Interim Final Rule on Preventive Services. File Code CMS-9992-IFC2. 

Dear Sir or Madam: 

I am writing on behalf of the 16,000 members of the Christian Medical Association, a 

professional membership organization that helps healthcare professionals to integrate their faith 

and profession and to care for patients according to longstanding ethical and moral principles. 

We offer comments on the amendments to the interim final regulations (76 Fed. Reg. 46621 

(Aug. 3. 20 II)) regarding mandatory coverage nationwide of certain preventive health services 

under provisions of the Patient Protection and Affordable Care Act. 

Key components of the mandate that especially impact faith-based health care include the 

following: 

The new rule would forcc insurance plans to cover "all Food and Drug Administration 

approved contraceptive methods. sterili=arion procedures. and patient education and 

counseling for all women wilh reproductive capacity. .. 

The Amended Regulations only consider for potential exemption a "religious employer" 

to be one that "(1) Has the inculcation of religious values as its purpose; (2) primarily 

cmploys persons who share its religious tenets; (3) primarily serves persons who share its 

religious tenets: and (4) is a non-profit organization under section 6033(a)( I) and section 

6033(a)(3)(A)(i) or (iii) of the [Internal Revenue Code]." Conscientiously objecting 

individuals and religiously affiliated health insurers are not exempted. 

The ncw rule docs not exempt drugs that according to the FDA have post-fertilization 

effects that "may inhibit implantation" of a living human embryo--an issue of weighty 

moral concern for many faith-based health care professionals, individuals and groups. 

The administration should rescind this mandate entirely, for the following reasons: 

I. Pregnancy is not a disease to be prevented; therefore, mandating contraceptives has no 

place in preventive disease policies. 

2. The federal mandate imposes a radical ideological stance--unprccedented in and 

inconsistent with federal law--regarding conscience, contraception and abortion, on the 

vast majority of states that have taken a far less coercive and far more balanced approach. 

David Stevens. MD Christian Medical Association Page 7 of 8 
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75050.120

3. The mandate violates the Constitution. federal law and the administration's stated 

policies: 

a. The mandate violates the religion and free speech clauses of the First Amendment 

of the Constitution. by coercing faith-based health care ministries to not only 

violate the very faith-based tenets that have motivated patient care for millennia, 

but also to pay/or that violation. 

b. The mandate violates the Weldon amendment, passed every year by Congress 

since 2004. 

e. The mandate violates the abortion and non-preemption provisions of the Patient 

Protection and Affordable Care Act (PPACA). 

d. The mandate violates the Administration's own public assurances that PPACA 

would not be construed to require coverage of abortion; it also violates the related 

presidential Executive Order to secure passage of the Act. 

4. The potential "religious exemption" is meaningless: 

a. The preamble to the Amended Regulations offers no actual exemption but merely 

allows "additional discretion" to exempt a nano-sector of "religious cmployers" 

from the guidelines regarding contraception. 

b. The potential exemption provides no protection to conscientiously objecting 

individuals or insurers. 

c. The narrow potential exemption is far more restrictive than any other genuine 

religious exemption in federal health care law. 

d. HHS is not constitutionally empowered--especially absent a compelling state 

interest--to simply make up its own definition of religious ministry. 

5. Such conscience-violating mandates will ultimately reduce patients' access to faith-based 

medical care, especially depriving the poor and medically underserved populations of 

such care. A national survey (available at www.Freedom2Care.org) of ovcr 2, 100 faithbased physicians revealed that over nine of ten are prepared to leave medicine if 

pressured to compromise their ethical and moral commitments. 

Thank you for your consideration of these views. 

Sincerely, 

David Stevens, MD, MA (Ethics) 

CEO 

'Christian Medical Association online survey of membership conducted Oet. 24-29, 2011, N~I,I77. 

" New York Times, "Administration Halts Survey of Making Doctor Visits, June 28, 2011. 

,,, Available online at http://www.freedom2care.org/learn/page/polls-april-2009. 

David Stevens, MD Christian Medical Association Page 8 of 8 
133 

Mr. PITTS. The Chair thanks the gentleman and recognizes Dr. 

Hathaway for 5 minutes. 

STATEMENT OF MARK HATHAWAY 

Mr. HATHAWAY. Chairman Pitts, Ranking Member Pallone, and 

members of the committee, thank you for the opportunity to testify 

before you today. 

Good morning. My name is Dr. Mark Hathaway. I am a boardcertified OB/GYN. I am the director of OB/GYN Outreach Services 

for Women’s and Infants’ Services at the Washington Hospital Center. I am also the Title X director at Unity Health Care, Washington, DC’s, largest Federally qualified health center. 

I work in several medical facilities here in Washington, DC. My 

patients tend to be women of color, primarily African American and 

Latina, and of lower socioeconomic status. Many of the patients I 

see are uninsured, underinsured, and seeking prenatal care or family planning services. Despite these obstacles, they desire to improve their lives and to have and raise healthy children. 

I see every day how increasing women’s ability to plan their 

pregnancies makes a difference in their lives. And by the same 

token, I also see the negative consequences of unintended and unplanned pregnancy, late prenatal care, uncontrolled medical problems, poor nutrition, and sometimes depression. I see firsthand 

how cost can be a barrier. That is why the Institute of Medicine’s 

recommendation is so critically important. Contraceptive counseling and methods should be covered under the Affordable Care 

Act without cost-sharing. Any attempts to broaden exemptions to 

that coverage requirement would mean leaving in place insurmountable obstacles to contraceptive services for far too many 

women. 

I know from my day-to-day experience what it means for patients 

who cannot afford to pay for their health services. The cost of a 

birth control method is frequently prohibitive for many of my patients. This is especially true for the more cost-effective, long-acting 

reversible contraceptive methods, also known as LARC. 

Women face many challenges in using contraception successfully. 

Too many women using methods like birth control pills, condoms 

and even injectables will experience an unplanned pregnancy during their first year of ‘‘typical use.’’ Long-acting reversible contraceptive methods, including intrauterine contraceptives and implants, are the most cost-effective methods because they have an 

extremely low failure rate and are effective at preventing pregnancy for several years. The up-front costs of these methods, however, are several hundred dollars, placing them out of the reach of 

millions of women who would otherwise use them. 

Three recent studies have found that lack of insurance is significantly associated with reduced use of prescription contraceptives. 

In St. Louis, researchers at Washington University have recently 

found that over 70 percent of women will choose a longer-acting 

method if cost and barriers are eliminated. 

There are those who assert that unintended pregnancy is not a 

health condition and therefore prevention of unintended pregnancy 

is not a preventive healthcare. From my personal practice I can say 

that I cannot disagree more. Just last week I met ‘‘Sarah.’’ She is 

134 

22 years old, has 2 children under the age of 3, one a recent newborn. She came in for a pregnancy test. Her diabetes had gone unchecked, which would put her in a category of a high-risk pregnancy. She was visibly shaking waiting for her pregnancy test results. She is working over 40 hours a week at 2 different jobs and 

was told by her primary care clinic that she would need to pay a 

copay of $40 and a $300 fee for the intrauterine device that she so 

desperately wants. She would have been devastated by a positive 

pregnancy test. She was incredibly relieved to learn she was not 

pregnant. She was also uninsured but we used our rapidly shrinking safety-net resources to provide her with long-acting contraception lasting up to 7 years. 

The evidence is also conclusive regarding pregnancy spacing. It 

is directly linked to improved maternal and child health. Numerous 

U.S. and international studies have found a direct causal relationship between birth intervals, low birth weight, as well as preterm 

births. In other words, we need to help women plan their pregnancies for their health as well as their children’s. 

Using contraception is the most effective way to prevent unintended pregnancy. Again, I have seen the success of contraceptive 

services in my own practice, and again the evidence on this is 

clear. Ninety-five percent of all unintended pregnancies occur 

among women who use contraception inconsistently or use no 

method at all. Indeed, couples who do not practice contraception 

have an 85 percent chance of experiencing an unintended pregnancy within the first year. 

For all these reasons, the Institute of Medicine’s recommendations are groundbreaking. Finally, all women will gain access to insurance coverage of family planning services regardless of income. 

All women will be able to get the counseling, education, and access 

to the most effective and medically appropriate contraceptive for 

them. This breakthrough has the potential to bring about major 

benefits for the health and well-being of women and their families. 

Most women will contracept for approximately 3 decades during 

their reproductive years. The adoption of the IOM’s recommendations holds so much promise for millions of women who currently 

lack basic resources like health insurance coverage. All of my training and experience tells me that what we are striving for is healthy 

women. We are also working to ensure that if and when they are 

ready to have a child that they have a healthy pregnancy. The best 

way to achieve this is to help women and couples become as 

healthy as possible before pregnancy. This includes financial 

health, emotional health, and physical health. We should trust 

women and empower women to make the appropriate decisions for 

themselves. Therefore, I hope we can agree that guaranteeing contraceptive coverage and removing cost barriers should be at the 

forefront of preventive care so that women can achieve their own 

goals. 

Thank you very much. 

[The prepared statement of Mr. Hathaway follows:] 

135 


75050.121

Testimony of Dr. Mark Hathaway 

Before the U.S. House of Representatives 

Energy and Commerce Committee, Subcommittee on Health 

November 2,2011 

Chairman Pitts, Ranking Member Pallone and members of the Committee. Thank you for the 

opportunity to testify before you today. 

Good morning, my name is Dr. Mark Hathaway and I am a board certified OB/Gyn. I am the 

director of OB/Gyn outreach services for Women's and Infants' Services at Washington Hospital 

Center. I am also the Title X Medical Director at Unity Health Care Inc.; Washington D.C.'s 

largest federally qualified health center system and the Title X grantee for the District. 

I work in several medical facilities here in Washington, D.C. My patients tend to be women of 

color, primarily African American and Latina, and of lower socioeconomic status. Many of the 

patients I see are uninsured or underinsured and seeking family planning services. Despite their 

obstacles, they desire to improve their lives, and to have and raise healthy children. 

I see every day how increasing women's ability to plan their pregnancies makes a difference in 

their lives. And by the same token, I also see the negative consequences of unintended and 

unplanned pregnancy, late prenatal care, uncontrolled medical problems, poor nutrition, and 

sometimes depression. I see firsthand how cost can be a barrier when it comes to utilizing 

preventive care in general and using contraceptive services in particular. 

That is why the 10M's recommendation is so critically important. Contraceptive counseling and 

methods should be covered under the Affordable Care Act without cost-sharing. Any attempts 

to broaden exemptions to that coverage requirement would mean leaving in place 

insurmountable obstacles to contraceptive services for far too many women. 

Cost is a barrier 

I know from my day-to-day experiences what it means for patients who cannot afford to pay 

for their health services. The cost of a birth control method is frequently prohibitive for many of 

my patients. This is especially true for the more effective long-acting reversible contraceptive 

methods, aka LARC or "forgettable methods". Women face many challenges in using 

contraception successfully. Too many women using methods like birth control pills, condoms 

and even injectables will experience an unplanned pregnancy during the first year of "typical 

use." Indeed up to 50 percent of pill users will discontinue that method within the year, 
136 


75050.122

significantly increasing their chances of an unintended pregnancy.' Long-acting reversible 

methods, including intrauterine contraceptives and implants, are the most cost-effective 

methods because they have an extremely low failure rate and are effective at preventing 

pregnancy for several years. However, the up-front costs of these methods can costs several 

hundred dollars, placing them out of the reach of millions of women who would otherwise use 

them. 

Three recent studies have found that lack of insurance is significantly associated with reduced 

use of prescription contraceptives. 2 And several other studies have shown that when out-ofpocket costs are eliminated, women's use of long-acting methods increases substantially. In 51. 

Louis, researchers at Washington University have found that over 70 percent of women will 

choose a longer acting method if cost and barriers are eliminated.' 

Preventing unintended pregnancy is critical preventive health care 

There are those who assert that unintended pregnancy is not a health condition and therefore 

prevention of unintended pregnancy is not preventive health care. From my personal practice I 

can say that I cannot disagree more. 

Just last week I met "Sarah." She's 22, has two children under the age of three, one a newborn, 

and came in for a pregnancy test. Her diabetes had gone unchecked which would put her in a 

medically high-risk category for pregnancy. She was visibly shaking waiting for her pregnancy 

test results. She's working over 40 hours a week at 2 jobs, and was told by her primary clinic 

that she would need to pay a copay of $40 and a $300 fee for the intrauterine device that she 

so desperately wants and needs. She would have been devastated by a positive pregnancy test. 

She was incredibly relieved to learn she was not pregnant. Unfortunately she is uninsured but 

we used our rapidly shrinking safety-net resources to provide her with long acting 

contraception. 

, Ruth Lesnewski and Linda Prine, "Initiative Hormonal Contraceptive," American Familv Physician, Vol 1 No 

74, July 2006.pp 105-112. 

2 KR Culwell and). Feinglass, "Changes in prescription contraceptive use, 1995-2002: the effect of 

insurance status," Obstetrics & Gvnecologv, 2007, 110(6): 13 71-13 78. KR Culwell and J. Feinglass, "The 

association of health insurance with use of prescription contraceptives," Perspectives on Sexual and 

Reproductive Health, 2007, 39(4): 226-230.). Nearns, "Health insurance coverage and prescription 

contraceptive use among young women at risk for unintended pregnancy," Contraception, 2009, 

79(2); 1 05-11 O. 

3 Washington University in St. Louis, School of Medicine, Department of Obstetrics and Gynecology, 

"Preliminary Study Findings," The Contraceptive Choice Project, September 2011. 

2 
137 


75050.123

The evidence is also conclusive regarding pregnancy spacing. It is directly linked to improved 

maternal and child health, aka infant mortality rate and maternal mortality rate. Numerous US 

and international studies have found a direct causal relationship between birth intervals and low 

birth weight as well as preterm births. A 2008 literature review also shows that throughout the 

US and Europe, there is an association between pregnancy intention and delayed initiation of 

prenatal care as well as reduced breastfeeding after a child is born. In other words, we need to 

help women plan their pregnancies for their health as well as their children's. 

Birth control is the most effective way to prevent unintended pregnancy 

Using contraception is the most effective way to prevent unintended pregnancy - and ultimately 

to reduce the need for abortion. Again, I have seen the success of contraceptive services in my 

own practice, and again the evidence on this is clear. According to a recent Guttmacher Institute 

study, the two-thirds of women at risk of unintended pregnancy who use contraception 

correctly and consistently account for only 5% of the 3 million unintended pregnancies that 

occur each year. Put another way, 95% off all unintended pregnancies occur among women who 

use contraception inconsistently or use no method at all. Indeed, couples who do not practice 

contraception have an 85 % chance of experiencing an unintended pregnancy within the next 

year. 

Importance of the 10M Recommendation/Coverage 

For all these reasons, the institute of Medicine women's health recommendations are groundbreaking. Finally, all women will gain access to insurance coverage of family planning services 

regardless of income. All women will be able to get the counseling, education, and access to the 

most effective and medically appropriate contraceptive for them. This breakthroug h has the 

potential to bring about major benefits for the health and well-being of women and their 

families. This comes from giving women the information and services necessary to enable them 

to plan and space their pregnancies. 

Most women will contracept for approximately three decades during their reproductive years. 

The adoption of the 10M's recommendations holds so much promise for millions of women who 

currently lack basic resources like health insurance coverage. 

All of my training and experience tells me that what we are striving for is healthy women. We 

are also working to ensure that if and when they are ready to have a child that they have a 

3 
138 


75050.124

healthy pregnancy to increase the chances of a healthy child. The best way to achieve this is to 

help women and couples become as healthy as possible before pregnancy. This includes 

financial health, emotional health, and physical health. We should trust women and empower 

women to make the appropriate decisions for themselves. Therefore, I hope we can at least 

agree that guaranteeing contraceptive coverage and removing cost barriers to being able to 

utilize contraceptive services should be 'at the forefront of preventive care so that women can 

achieve their own goals. 

Thank you. 

4 
139 

Mr. PITTS. The Chair thanks the gentleman and now recognizes 

Ms. Belford for 5 minutes. 

STATEMENT OF JANE G. BELFORD 

Ms. BELFORD. Mr. Chairman and distinguished members of the 

subcommittee, thank you for the opportunity to testify before you 

today on an issue of vital importance to religious organizations like 

the one I serve. 

My name is Jane Belford, and I serve as chancellor of the Catholic Archdiocese of Washington, which includes 600,000 Catholics 

and includes 140 parish church communities in the District of Columbia and portions of Maryland. 

The Archdiocese is one of 195 dioceses of the Catholic Church in 

the United States which represents more than 70 million Catholics. 

Throughout this country’s history, the Catholic Church has been 

one of the leading private providers of charitable educational and 

medical services to the poor and vulnerable. The Archdiocese continues that tradition of service today through its Catholic schools, 

medical clinics, maternal and pregnancy resource programs, social 

service agencies, senior and low-income housing, job training programs, and a vast number of other programs and services for persons in need regardless of their faith or no faith, without question, 

without exception. 

The late former Archbishop of Washington, Cardinal Hickey, 

once said, ‘‘We serve them not because they are Catholic but because we are Catholic. If we don’t care for the sick, educate the 

young, care for the homeless, then we cannot call ourselves the 

Church of Jesus Christ.’’ Until now, Federal law has never prevented religious employers like the Archdiocese of Washington from 

providing for the needs of their employees with a health plan that 

is consistent with the Church’s teachings on life and procreation. 

The Archdiocese provides excellent health benefits to its nearly 

4,000 employees, consistent with Catholic teaching, and subsidizes 

most of the cost. 

We would lose this freedom of conscience under the mandate 

from the Department of Health and Human Services that the 

health plans of religious organizations like ours cover sterilization, 

contraceptive services, and drugs that in some cases act as 

abortifacients. This is not in line with the policy that has governed 

other Federal health programs. 

The HHS mandate provides a radically narrow test to be eligible 

for exemption. Essentially, under this test Catholic organizations 

like ours would be considered religious enough only if we primarily 

served Catholics, only if we primarily hired Catholics, and only if 

the whole purpose of our service was to inculcate our religious values. 

Under this analysis, organizations like ours would be only free 

to follow Catholic teaching on life and procreation if we stopped 

hiring and serving non-Catholics. However, as in the parable of the 

Good Samaritan, Catholic organizations serve people of all different 

faiths without question or condition and without knowing their 

faith. 

Just last year, Catholic Charities of the Archdiocese served over 

100,000 people. I could not tell you what their faith is. Our 98 

140 

Catholic schools educate 28,000 students in the District of Columbia and Maryland, and in some locations, more than 80 percent of 

the students are non-Catholic. 

HHS has drafted an exemption that is so narrow that it will exclude virtually all Catholic hospitals; Catholic schools, colleges, and 

universities; and charitable organizations, none of which impose a 

litmus test on those they serve. Why does the government want to 

have us do that? 

In my written testimony, I allude to the vast array of services 

being provided right now in the Archdiocese of Washington—the 

medical care, educational services, and social services that are 

made available. This narrow religious exemption drafted as it has 

would burden our deeply held belief not only in life and procreation 

but in the belief that God calls us to serve our neighbors. Both 

those beliefs—our beliefs in life and procreation and our belief in 

service—are grounded in a fundamental teaching that upholds the 

dignity of human life of whatever race, status, or creed from the 

beginning of life to the end. 

It is part of our central mission and religious identity to be a witness in the world through acts of service to all who are in need, 

regardless of religion or creed. When we are fortunate enough to 

be able to partner with the government in providing these services, 

our devotion to the cause and our institutional resources can make 

each dollar of funding go further. Unfortunately, the mandate 

poses a threat to our rights of conscience in our services for our 

neighbors. At a time when local, State, and Federal governments 

have had to consider drastic cuts to their healthcare and social 

service programs and when our citizens’ need for support is so 

great, it is difficult to understand why the Federal Government 

would impose requirements that are designed to undermine and restrict access to these services. 

We believe in the value and dignity of all human life from beginning to end, and we believe that we are called to serve our neighbors, all of them. We will continue to honor these beliefs. We have 

served, we serve now, and we will continue to serve, but I urge the 

committee to consider our Nation’s historical commitment to religious liberty and the value and importance of the Church’s service 

to the poor and vulnerable and to permit us to practice our faith 

consistent with the teachings of our church. 

Mr. Chairman and members of the committee, thank you for the 

opportunity to address you. 

[The prepared statement of Ms. Belford follows:] 

141 


75050.125

United States House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Health 

Hearing on the Respect for Rights of Conscience Act of 20 11 

"Do New Health Law Mandates Threaten Conscience 

Rights and Access to Care?" 

November 2,2011 

Testimony of 

Jane G. Belford 

Chancellor 

Roman Catholic Archdiocese of Washington 
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75050.126

Mr. Chairman and distinguished members of the Subcommittee, thank you for 

the opportunity to testify before you today in support of the Respect for Rights of Conscience 

Act. I deeply appreciate the attention you have devoted to this issue of vital importance to 

religious organizations and individuals across our country. 

My name is Jane Belford, and I represent the Archdiocese of Washington, for which I 

serve as Chancellor and General Counsel. I will summarize my remarks and ask that my written 

testimony be admitted to the record. 

The Archdiocese of Washington is a nonprofit corporation which was chartered by an 

Act of Congress in 1948. It is home to nearly 600,000 Catholics and includes 140 parishes 

located in Washington, D.C. and five counties in Maryland: Montgomery, Prince George's, 

Calvert, Charles and St. Mary's. As just one of (he 195 local dioceses of the Roman Catholic 

Church in the United States, we exist to spread the Gospel and to serve the needs of our 

neighbors. Throughout history, the Catholic Church and other religious institutions have been the 

leading private providers of charitable, educational and medical services to the poor and 

vulnerable. The Archdiocese of Washington continues that tradition of service today through its 

schools, medical clinics, social service agencies, senior and low income housing, job training 

programs, and vast number of programs and services for persons in need, regardless of their faith 

or lack of faith. As the late Archbishop of Washington, James Cardinal Hickcy said, "We serve 

[them] not because they are Catholic, but because we are Catholic. Ifwe don't care for the sick, 

educate the young, care for the homeless, then we cannot call ourselves the church of Jesus 

Chris!.'" 

1 Murphy, Caryle. "A Steadfast Servant of D.C. Area's Needy." The Washington Post (2004-fO-25). 

2 
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75050.127

I join with others in support of the Respect for Rights of Conscience Act, HR 1179. As 

you know, the proposed legislation would address the Department of Health & Human Services' 

("HilS") regulations that mandate that private health care plans cover sterilization, contraceptive 

services, and abortifacient drugs, and aims to correct the radically narrow religious exemption 

that those regulations provide. The HHS mandate,' which effectively categorizes pregnancy as a 

disease, is irretrievably Oawed and should be rescinded in its entirety. The United States 

Conference of Catholic Bishops has thoroughly addressed this issue in the comments it 

submitted to HHS on August 31,20 II and they are incorporated by reference here.) 

If the mandate is not rescinded, then its religious exemption, which would be the 

narrowest exemption of its kind ever enacted in federal law. would fail to protect the vast 

majority of religious stakeholders in the process of providing health insurance. Until now. 

federal law has never prevented religious employers, like the Archdiocese of Washington, from 

providing for the needs of their employees with a health plan that is consistent with the Church's 

moral teachings. 

This would change under the HHS mandate. For this reason. the Respect for Rights of 

Conscience Act is needed to bring the health care reform law in to line with the policy that has 

governed other federal health programs for years. It would proactively protect religious 

employers and others who have moral or religious objections to the drugs and procedures for 

which the HHS regulations would mandate coverage.' HR 1179 would not change any past laws. 

2 By "the mandate," I am referring only to the requirement that health plans cover contraceptives, 

sterilization, and related education and counseling. [am not referring to the entire list of preventive services for 

women. 

3The USCCB's comments are available at http: Iwww.usccb.ore/aboutigeneralcot! nSf Ilrulemaki ng/lip load! commcnts-to-hhs-on-prevent i ve-scrv ices~ 20 I 1-08-2. pd f 

4 The Catholic Church's moral and religious objections to contraception are set forth in the Catechism of 

the Catholic Church. It is the Church's belief that there is an "inseparable connection, established by God, which 

3 
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Its approach to conscientious objection in this context is the norm, bringing the Patient 

Protection and Affordable Care Act into line with standards of conscience protection in health 

care long agreed upon at the federal level. 

The inadequate exemption at issue sets forth a four-part test for an entity to be identified 

as a religious organization, According to HHS, an organization is religious, and therefore free to 

exclude contraception and sterilization from its health plan only if it: (I) has the inculcation of 

religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) 

primarily serves persons who share its religious tenets; and (4) is a non-profit organization as 

described in section 6033(a)(I) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue 

Code. 76 Fed. Reg. 46621 (Aug. 3,20 II). 

Under this test archdiocesan Catholic organizations would be free to act in accord with 

Catholic teaching on life and procreation only if they were to stop hiring and serving nonCatholics. However, following the example set forth by the parable of the Good Samaritan, 

these Catholic organizations serve people of all different faiths without question or 

condition. HHS has drafted a religious exemption that is so narrow that it excludes virtually all 

Catholic hospitals, elementary and secondary schools, colleges and universities, and charitable 

organizations, none of which impose a litmus test on those they serve, as the HHS mandate 

would have them do. 

A brief snapshot of some of these organizations and who they serve may help to better 

illustrate the point. In the Archdiocese of Washington. there are three Catholic hospitals that last 

year provided millions of dollars of free or low cost care for uninsured men, women and 

children, So, too, the Archdiocesan Health Care Network, a volunteer program of Catholic 

man on his own initiative may not break, between the unitive significance and the pmcreative significance which are 

both inherent to the marriage act." Pope Paul VI, 1968, Humanae Vilae, 12. 

4 
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75050.129

Charities, connects low-income and uninsured patients with specialized, pro bono health care 

services through a network of 300 volunteer doctors, dentists and health care professionals 

representing all practices. Catholic Charities and our Catholic Services Network, with a staff of 

800 and volunteers numbering 3,400, is the largest private provider of social services in the 

metropolitan DC area and last year served more than 100,000 children, adults and families 

through 77 programs offering a wide range of services that include health care, maternity 

programs and residential care for children in crisis, emergency shelter, food, housing, education, 

job training, counseling, support for persons with development disabilities, services for new 

immigrants, legal aid, and more. The Spanish Catholic Center, in four locations in the 

Archdiocese, operates two medical clinics, a dental clinic, a pediatric clinic and provides social 

services, employment services, ESOL, and other services and had 38,000 client visits last year. 

Affordable housing is provided to several thousand low and moderate income senior adults, 

families with children, and others with special needs by Victory Housing, the development arm 

of the Archdiocese. Victory Housing has built and manages seven senior assisted living 

communities, five low-to-moderate income and II very low income independent senior 

communities, as well as three workforce housing communities, with two new facilities scheduled 

to open in 2012. 

This social services effort is supplemented by parish-based outreach services. Nearly 

everyone of our 140 parishes has some outreach ministry, including such programs as soup 

kitchens, a community health clinic. food pantries, outreach support to the disabled, grants for 

emergency services, assistance to pregnant women, and twinning programs. In addition, churchbased service organizations such as the Knights of Columbus, the St. Vincent de Paul Society, 

5 
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75050.130

Christ Child Society and the Order of Malta, help to respond to the needs of the poor and 

vulnerable across the Archdiocese. 

In addition to its health care and social services ministries, education is central to the 

mission of the Catholic Church. The Archdiocese has 98 Catholic elementary and secondary 

schools that arc educating just over 28,000 students. These schools produce an annual cost 

savings to taxpayers in the District of Columbia and Maryland conservatively estimated at more 

than $380,000,000 annually. Finally, through the annual Cardinal's Appeal and other 

archdiocesan fundraising efforts, and through the generosity of donors, the Archdiocesc annually 

provides millions of dollars to support our ministries of health care, education and social 

services. If not for these ministries and the service of religious organizations, more of the work 

of caring for the sick, the poor and the marginalized would fall to government, or simply go 

undone. 

The Archdiocese of Washington employs approximately 3,800 full and part 

time employees to run its operations and ministries. We provide these employees with health 

care coverage through a self-funded, church-sponsored, health benefit plan. We provide excellent 

health benefits consistent with Catholic beliefs, and substantially subsidize the costs of 

coverage. Currently, the Archdiocese is free under federal law to offer health benefits coverage 

that excludes contraception and sterilization. We would lose this freedom of conscience under 

the HHS mandate's current definition of an exempted religious organization. We believe the 

Archdiocese of Washington and other religious employers should be permitted to continue to 

extend health benefits to our employees without violating our moral or religious convictions. 

It is common to think of the HIlS mandate as implicating only one religious belief that 

the Catholic Church holds-that sterilization and contraception are immoral. However, because 

6 
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75050.131

of the narrow scope of its religious exemption-specifically, its condition that qualifying 

organizations must primarily serve only members of their own faith-the HHS mandate would 

also significantly burden our deeply held belief that God calls us to serve our neighbors, Both 

beliefs are grounded in the fundamental Church teaching that consistently upholds the dignity of 

all human life, of whatever race, status, or creed, from the very beginning to the very end. 

It is our belief that God calls us to respect all life and to serve all others-not just 

Catholics, but the whole community. It is part of the Archdiocese's central mission and religious 

identity to be a witness in the world through its acts of service to all who are in need, regardless 

of religion or creed. We strive to care for the sick, to aid the poor, and to teach children how to 

lead a good life. We believe that service to others is part of our baptismal calling and 

our employees care deeply about their work. In addition to our committed employees, we have 

thousands of dedicated volunteers, who expand the reach of the Church to the most vulnerable 

throughout our communities. When we are fortunate enough to be able to partner with the 

government in providing these services, our devotion to the cause and our institutional resources 

can make each dollar of funding go further. 

Unfortunately, the mandate poses an unprecedented threat to rights of conscience for 

religious organizations that aim to serve their neighbors. One consequence of maintaining this 

narrow exemption would be that Catholic schools that teach abortion is morally wrong could 

have to pay for abortifacient drugs for their employees; and Catholic health clinics that refuse to 

provide contraception or sterilization for patients could have to subsidize contraception and 

sterilization for their employees. In comments submitted on August 31 by the U.S. Conference of 

Catholic Bishops to HHS, it was noted: "When a religious organization in particular pays for 

private conduct, the inescapable message is that it does not disapprove of that conduct. .. , [A] 

7 
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75050.132

religious organization cannot communicate an effective message that conduct is morally wrong 

at the same time that it subsidizes that conduct. In particular, Catholic organizations cannot 

effectively and persuasively communicate the Church's teaching that contraception and 

sterilization are immoral if they simultaneously pay for contraceptives for their employees or (in 

the case of colleges and universities) for their students.'" 

Diocesan organizations would not be the only ones to suffer under the proposed mandate. 

As Cardinal Daniel Dinardo noted in his letter to Congress on September 7 of this year, 

"individuals, insurers, and the sponsors of non-employee health plans (e.g., student health plans 

in Catholic schools) would have no exemption at all." This omission jeopardizes the free speech 

rights of such individuals, insurers, and sponsors by forcing them to offer or subsidize, and 

thereby to endorse, the practice of sterilization and contraception. For the Church's position on 

these and other threats posed to religious freedom by these regulations, I would respectfully 

refer the Committee to the USCCB's August 31, 2011 Comments submitted to HHS. 

Therein, the USCCB asserts that the HHS mandate would be subject to challenge in court 

on a number of other grounds. It would violate the Weldon amendment's prohibition of 

government discrimination against health plans that do not cover abortions (see Consolidated 

Appropriations Act, 2010, Pub. L. lll-117, Div. 0, § S08(d) (Dec. 16, 2009); it would 

contravene the abortion and non-preemption provisions of the Patient Protection and Affordable 

Care Act (see §§ 130 I (b)( I )(A) and 1303(c)( I); it would run afoul of protections established in 

the Religious Freedom and Restoration Act (42 U.S.C. 2000bb-l(c)); and it would infringe on 

the rights and freedoms guaranteed in the Free Exercise and Establishment Clauses of the First 

S The USCCB comments are available at http://www.usccb.org!about!generalcounse l/ru lemaki ng/up loadl com ments-to- h hs-on-preventi ve-services-20 I i-O 8-2. pdf. 

8 
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75050.133

Amendment (see, e.g., Church of the Lukumi Babalu Aye Y. City of Hialeah. 508 U.S. 520 (1993) 

(Free Exercise Clause); Larson Y. Valente, 456 U.S. 228, 244-45 (1982) (Establishment Clause). 

The best way to fix these legal deficiencies is to rescind the mandate in its entirety. The next 

best solution is to pass IlR 1179. 

Aside from being unconstitutional, the mandate's narrow exemption represents a massive 

error in policy making by excluding Catholic institutions that provide health care, education and 

charitable services to the general public. At a time when local, state. and federal governments 

have had to consider drastic cuts to their health care and social scrvice programs, and when our 

citizens' need for support is so great, it is difficult to understand why the federal government 

would impose requirements that are designed to undermine and restrict access to these services. 

Regardlcss of one's beliefs about the specific issues of contraception and abortion, people 

of faith should not be compelled to act in a manner inconsistent with their moral convictions in 

order to receive or provide health coverage. This mandate would imposc such a compulsion on 

any religious institution that wishes to continue to employ and serve people of all faiths, and to 

provide health coverage to those who work in their institutions. Our Catholic schools, hospitals. 

clinics. and social service programs serve tens of thousands of non-Catholics. No one is required 

to become Catholic in order to receive these services. Y ct this mandate would require us to 

violate our religious beliefs to serve them. 

We believe in the value and dignity of all human life from beginning to end, and we 

believe that we are called to serve our neighbors-all of them. We will continue to honor these 

beliefs. But I implore the Committee to consider our nation's historical commitment to religious 

liberty and the value and importance of the Church's service to the poor and vulncrable, and to 

allow us to continue to observe our beliefs without interference by the law. 

9 
150 

Mr. PITTS. Thank you. The Chair thanks the gentlelady, recognizes Mr. O’Brien for 5 minutes. 

STATEMENT OF JON O’BRIEN 

Mr. O’BRIEN. Mr. Chairman, Member Pallone, and members of 

the subcommittee, thank you for this opportunity to present testimony on this important question of conscience rights and access to 

comprehensive healthcare. 

For nearly 40 years, Catholics for Choice has served as a voice 

for Catholics who believe that Catholic teaching means that every 

individual must follow his or her own conscience and respect the 

rights of others to do the same. This hearing seeks to answer the 

question: Do new health law mandates threaten conscience rights 

and access to care? I firmly believe the requirements under the Affordable Care Act and the slate of regulations being created to implement it infringe on no one’s conscience, demand no one change 

his or her religious beliefs, discriminate against no man or woman, 

put no additional economic burden on the poor, interfere with no 

one’s medical decisions, compromise no one’s health—that is, if you 

consider the law without refusal clauses. 

When the question is asked in light of these unbalanced and 

ever-expanding clauses, the answer becomes yes, it would do all 

those things. When burdened by such refusal clauses, the new 

health law absolutely threatens the conscience rights of every patient seeking care for these restricted services and of every provider who wishes to provide comprehensive healthcare to patients. 

These restrictions go far beyond their intent of protecting conscience rights for all by eliminating access to essential healthcare 

for many, if not most patients, especially in the area of reproductive health services. This will make it harder for many working 

Americans to get the healthcare they need at a cost they can afford. 

Like many Catholics, I accept that conscience has a role to play 

in providing healthcare services, but recent moves to expand conscience protections beyond the simple right for individual 

healthcare providers to refuse to provide services to which they 

personally object to go too far. It is incredible to suggest that a hospital or an insurance plan has a conscience. Granting institutions— 

or entities like these—legal protection for the rights of conscience 

that properly belong to individuals is an affront to our ideals of 

conscience and religious freedom. 

Respect for individual conscience is at the core of Catholic teaching. Catholicism also requires deference to the conscience of others 

in making one’s own decisions. Our faith compels us to listen to our 

consciences in matters of moral decision-making and to respect the 

rights of others to do the same. Our intellectual tradition emphasizes that conscience can be guided, but not forced, in any direction. This deference for the primacy of conscience extends to all 

men and women and their personal decisions about moral issues. 

Today, the 98 percent of sexually active Catholic women in the 

United States who have used a form of contraceptive banned by the 

Vatican have exercised their religious freedom and followed their 

consciences in making the decision to use contraception. Thus, they 

are in line with the totality of Catholic teaching if not with the 

151 

views of the hierarchy. Having failed to convince Catholics in the 

pews, the United States Conference of Catholic Bishops and other 

conservative Catholic organizations are now attempting to impose 

their personal beliefs on all people by seeking special protection for 

their conscience rights. They claim to represent all Catholics when 

in truth theirs is a minority view. The majority of Catholics support equal access to contraceptive services and oppose policies that 

impede upon that access. 

Two-thirds of Catholics, 65 percent, believe that clinics and hospitals that take taxpayer money should not be allowed to refuse to 

provide procedures or medications based on religious belief. A similar number, 63 percent, also believes that all health insurance, 

whether private or government-run, should cover contraception. 

Sweeping refusal clauses and exemptions allow a few to dictate 

what services many others may access. They disrespect the individual capacities of women to act upon their individual consciencebased decision. They impede the rights of women and men to make 

their own decisions about what is best for them, their health and 

their families. 

Lawmakers of all political hues can come together to support a 

balanced approach to individual conscience rights and access to 

comprehensive healthcare. It makes sense for all those who want 

to provide more options to women seeking to decide when and 

whether to have a child. It makes sense for those who want to keep 

the government’s involvement in healthcare to a minimum. Above 

all, it makes sense for a society that believes in freedom of religion, 

a right one can’t claim for oneself without extending it to one’s 

neighbor. 

The bottom line is that protecting conscience rights and preserving access to care shouldn’t just be about protecting those who 

seek to dictate what care is and is not available, nor should it be 

for those who would dismiss the conscience of others by imposing 

their view of which consciences are worth protecting. Protecting individual conscience and ensuring access to affordable, quality care 

is not just an ideal, it is a basic tenet of our society and it is the 

right thing to do. 

I thank the subcommittee for inviting me today. 

[The prepared statement of Mr. O’Brien follows:] 

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Testimony of 

Jon O'Brien 

President 

Catholics for Choice 

Submitted to 

US House of Representatives Committee on Energy and Commerce 

Subcommittee on Health 

Written Testimony for the Hearing Record on 

"Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" 

November 2,2011 
153 


75050.135

Mr. Chairman, Ranking Member Pallone and Members of the Subcommittee, thank you for this 

opportunity to present testimony on behalf of Catholics for Choice on this important question of 

conscience rights and access to comprehensive healthcare. 

For nearly 40 years, Catholics for Choice has served as a voice for Catholics who believe that the 

Catholic tradition supports a woman's moral and legal right to follow her conscience on matters of 

sexuality and reproductive health. Throughout the world, we strive to be an expression of Catholicism 

as it is lived by ordinary people. We are part of the great majority of the faithful in the Catholic churCh 

who disagrees with the dictates of the Vatican on matters related to sex, marriage, family life and 

motherhood. We represent those who believe that Catholic teachings on conscience mean that every 

individual must follow his or her own conscience-and respect others' right to do the same. 

Certainly, at Catholics for Choice, we are no strangers to the intersection of religion, sex and politics. 

While religious voices and traditions are a vital part of public discourse, religious views should not be 

given disproportionate weight in public policy discussions. When this happens the lives of men and 

women can suffer greatly. We believe in a world where all voices, the voices of the religious and of the 

secular, of Catholics and non-Catholics alike, are heard in public policy discussions. 

This hearing seeks to answer the question: Do new health law mandates threaten conscience rights 

and access to care? I firmly believe the requirements under the Affordable Care Act, and the slate of 

regulations being created to implement it, infringe on no one's conscience, demand no one change 

her or his religious beliefs, discriminate against no man or woman, put no additional economic burden 

on the poor, interfere with no one's medical decisions, compromise no one's health-that is, if you 

consider the law without refusal clauses. When the question is asked in light of these unbalanced and 

ever-expanding clauses, the answer becomes yes, it would do all these things. When burdened by 

such refusal clauses, the new health law absolutely threatens the conscience rights of every patient 

seeking care for these restricted services and of every provider who wishes to provide comprehensive 

care to their patients. These restrictions go far beyond their intent of protecting conscience rights for 

-1-
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75050.136

all by eliminating access to essential healthcare for many, if not most patients, especially in the area of 

reproductive healthcare services. This will make it harder for many working Americans to get the 

healthcare they need at a cost they can afford. 

The Affordable Care Act has many positive elements to it. Millions will now be able to access insurance 

coverage for their health needs and, with the basic level of coverage required under the new law, 

these newly insured and the millions of those better insured will now have greater access to a wider 

range of services than ever before. However, the law includes a refusal clause which has been 

expanded in the past decades to threaten the consciences of both those who seek to receive and 

those who want to provide services. Advocates of these expansive refusal clauses claim these are 

necessary to protect conscience rights. Others believe that refusal clauses such as these are simply 

part of attempts to derail the Affordable Care Act and to curb access to reproductive healthcare 

services entirely. Moreover, proposals to expand existing refusal clauses increase threats to the 

conscience rights of patients and providers by including not just abortion but also family planning 

services and, should some get their way, any other service deemed "unacceptable" by a tiny minority. 

In recent years, under the guise of protecting religious freedom and "conscience rights" we have seen 

a dramatic upswing in attempts to expand the scope of refusal clauses, their application, and the 

entities able to utilize them. These new, ever-broader refusal clauses do far more than allow those 

healthcare professionals or social service providers with conscience objections to opt out. Instead, 

they are effectively being used as a means to refuse some treatments, medications, benefits and 

services to all comers. 

These expansions have increased not only the services that may be refused-including reproductive 

health services as well as insurance coverage for those services and even training for medical 

professionals-but they have also the number of those who may claim these protections. Almost 

everyone, including most Catholics, agrees that it is reasonable to allow health care professionals, 

including doctors, nurses and pharmacists, to opt out of providing essential reproductive healthcare 

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services and medications to which they conscientiously object. There is no doubt that there are times 

when the conscience of an individual doctor, nurse or pharmacist may conflict with the wishes or 

needs of a patient. This often happens in cases related to abortion. Except in emergency situations, it 

is reasonable and indeed prudent to allow those who are opposed to abortion to opt out of providing 

the service. In these situations, women seeking these services should not have to worry about the 

religious and moral beliefs of their healthcare providers interfering with the provision of the best 

possible care. Therefore, it is in the best interests of all that only medical professionals committed to 

providing such services do so. Women need support and compassionate care when they access 

reproductive healthcare services, not judgment and disdain. 

When this is not possible, a reasonable ethical fallback is for the institution to guarantee timely 

referrals to ensure that patients receive continuity of care without facing an undue burden, such as 

traveling long distances or encountering additional barriers to obtaining the desired services. 

Moreover, good practice should also compel a religious institution to make sure that the consciences 

of both the health care (or social services) provider and the patient (or client) are accommodated by 

having policies in place that enable individuals to receive whatever medications they are prescribed, 

procedures they require or services they seek. 

like many Catholics, I accept that conscience has a role to play in providing health care services, but 

recent moves to expand conscience protections beyond the simple right for individual healthcare 

providers to refuse to provide services to which they personally object go too far. Increasingly, 

demands and regulatory proposals attempt to grant that option to an institution or any individual 

along the spectrum of care, funding and coverage. It is incredible to suggest that a hospital or an 

insurance plan has a conscience. Granting institutions, or entities like these, legal protection for the 

rights of conscience that properly belongs to individuals is an affront to our ideals of conscience and 

religious freedom. 

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Allowing religious institutions to dictate the medical care available to their employees or religiouslyaffiliated organizations to dictate what services their beneficiaries are allowed to access would 

encroach on the individual consciences of those seeking care and assistance. Refusal clauses such as 

these fly in the face of true religious freedom by promoting the interests of certain elements of 

particular religions over the consciences and beliefs of individuals. They ignore the moral agency of 

the many who do not share the beliefs of a particular religious ideology. If allowed to stand, these 

refusal clauses do nothing but endanger many women's access to the healthcare they need. When 

codified into law at the federal or state level, these "protections" actually constitute state-sponsored 

discrimination against women based on where they are employed, where and how they buy health 

insurance and where they seek to receive care. 

Today, the 98 percent of sexually active Catholic women in the US who have used a form of 

contraception banned by the Vatican have exercised their religious freedom and followed their 

consciences in making the decision to use contraception. Thus, they are in line with the totality of 

Catholic teachings, if not with the views of the hierarchy. The problem is very clearly with the Catholic 

hierarchy and not the Catholic church, which includes the vast majority of the 68 million Catholics in 

the United States who use and support the availability of comprehensive reproductive healthcare 

services for all those who choose to utilize them. 

Having failed to convince Catholics in the pews, the United States Conference of Catholic Bishops 

(USCCB) and other conservative Catholic organizations are now attempting to impose their personal 

beliefs on all people by seeking special protection for their "conscience rights." They claim to 

represent all Catholics when, in truth, theirs is the minority view. The bishops have identified several 

sympathetic high-profile allies in healthcare, education and social service provision to assist them in 

promoting their demands, but these allies are heavily reliant on the bishops for funding and prestige. 

Hospitals and colleges can lose their Catholic designation at the bishop's whim, as happened recently 

in Phoenix, Arizona. 

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At a Catholic hospital in Phoenix, medical professionals acted to save the life of a pregnant woman by 

performing a life-saving abortion on a mother offour. The local bishop decided that his authority over 

the hospital allowed him to second-guess the medical decisions they made and he stripped the 

hospital of its Catholic designation. This is antithetical to the Catholic social justice tradition, which 

would not leave a woman's life out of any healthcare equation. 

What occurred in Phoenix helps to illustrate the problem with the bishops' intrusion into medical 

decisions. The personal and professional freedom to make healthcare decisions is being threatened by 

expansive refusal clauses. The exemptions that the USCCB and other conservative Catholic 

organizations are demanding do not offer any more protection for religious freedom, but rather 

impede the religious freedom of millions of Americans, taking reproductive healthcare options away 

from everybody. 

The USCCB and some Catholic organizations, many that receive taxpayer money, are asking to be 

allowed to: 

deny condoms as part of HIV outreach; 

ban employees and their dependents from getting the benefit of no-cost contraceptive 

coverage that other insured Americans enjoy; 

opt out of providing emergency contraception to victims of sexual violence who come to 

Catholic hospitals for help; and 

deny abortion care to everybody-even those women whose lives are threatened by their 

pregnancy. 

They claim that they are representing all Catholics, but this is not true. The majority of Catholics 

support equal access to contraceptive services and oppose policies that impede upon that access. 

Two-thirds of Catholics (65 percent) believe that clinics and hospitals that take taxpayer money should 

not be allowed to refuse to provide procedures or medications based on religious beliefs. A similar 

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number, 63 percent, also believes that health insurance, whether private or government-run, should 

cover contraception.' A strong majority (78 percent) of Catholic women prefer that their hospital offer 

emergency contraception for rape victims, while more than half (55 percent) want their hospital to 

provide it in broader circumstances.' This support for the full range of contraceptive services is 

unsurprising, as restrictions such as refusal clauses or prohibitive costs affect Catholics just as often as 

non-Catholics-98 percent of sexually active Catholic women have used a modern method of birth 

control, mirroring the rate of the population at large (99 percent).' 

Advocating for expansive refusal clauses in healthcare delivery regulations would affect all patientswhether those patients are Catholic or not. Seeking exemptions for religious organizations to cover 

essential health benefits, such as full coverage of recommended preventive services including 

contraception, under the Affordable Care Act will only serve to endanger many women's access to the 

healthcare they need-whether those employees share those religious beliefs or not. In reality, these 

exemptions would deny the right of everyone seeking comprehensive healthcare. 

When religious voices are allowed to direct policymaking, the best interests of those seeking 

healthcare services can be ignored. This is clear in the case of the Catholic healthcare industry which, 

despite providing much valuable service, persists in refusing to provide a full range of reproductive 

health care services, even to those who are in desperate need of them. 

Respect for individual conscience is at the core of Catholic teaching. Catholicism also requires 

deference to the conscience of others in making one's own decisions. Our faith compels us to listen to 

our own consciences in matters of moral decision-making and to respect the rights of others to do the 

same. Our intellectual tradition emphasizes that conscience can be guided, but not forced, in any 

1 Belden RU550neUo & Stewart, "Catholic Voters' Views on Health Care Reform and Reproductive Health Care Services: A 

National Opinion Survey of Catholic voters conducted for Catholics for Choice," September 2009. 

21bis Reproductive Health. Second chance denied: Emergency contraception in Catholic hospital emergency rooms. A report 

for Catholics for Choice, 2002. 

3 US Department of Health and Human Services, National Center for Health Statistics, "National Survey of Family Growth," 

2008. 

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direction. This deference for the primacy of conscience extends to all men and women and to their 

personal decisions about moral issues. 

Our faith also compels us to respect religious pluralism and religious freedom. Religious freedom is an 

expansive rather than restrictive idea. It has two sides: freedom of religion and freedom from religion. 

It is not about telling people what they can and cannot believe or practice, but rather about 

respecting an individual's right to follow his or her own conscience in religious beliefs and practices, as 

well as in moral decision making. The protections we put in place to preserve religious freedom do not 

permit religious institutions or individuals to obstruct or coerce the exercise of another's conscience. 

Sweeping refusal clauses and exemptions allow a few to dictate what services many others may 

access. They disrespect the individual capacities of women to act upon their individual consciencebased decision. They impede the rights of women and men to make their own decisions about what is 

best for their own health, and that of their families, as well as restricting their right to act upon those 

decisions without undue and unjust burdens. 

One woman who saw these burdens placed on her conscience rights is "Sandra," a science teacher at a 

Catholic school in the Midwest. Her story is an example of the many Americans who fall under these 

types of expansive refusal clauses being pushed by the bishops and their allied organizations. What is 

a reality for Sandra today is what many women can look forward to in their future. 

As with almost all Catholic schools, Sandra's employers follow diocesan rules regarding employees' 

insurance-meaning no contraceptive coverage, regardless of medical necessity. When she first 

learned ofthe refusal clause proposed in the recent regulation to implement the preventive health 

services under the Affordable Care Act, she was outraged. As she explained to us, they added "insult to 

injury" by ignoring the healthcare needs of women like her and allowing her employers to continue to 

deny her coverage. 

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"I just never assumed that in 2011 I would be denied birth control." she said. "I'm in my mid-twenties. I 

have no intention of having kids at the moment. I like teaching kids, but it's a whole other thing 

having them." 

Sandra lost coverage when she began working under the jurisdiction of her local diocese. "I went to fill 

my birth control prescription like I always do. I say 'Here's my new insurance card: and they say I'm not 

covered," she related. "They thought that it was weird and asked where I worked. As soon as I said I 

worked in a Catholic school, they said, 'Oh, 99 percent of Catholic schools will not cover it. We've never 

had it covered before.' I had no clue." 

For Sandra, this posed a significant hardship. She had taken a salary reduction in order "to go to work 

every day saying that it's what I love." She and her husband had carefully considered their insurance 

plans and determined that it was more economical for them to remain on separate policies, but once 

she had to payout of pocket for the birth control that was best for her, a non-generic prescription, 

their careful financial planning was all for naught. 

"Birth control is a lot of extra money on top of the salary reduction, but the principle of it is really what 

gets me," she told us. "I don't like being told by some guy that I've never met that I can't use it. The 

bishops are not even having sex in the first place. How are they supposed to know how to tell me 

what to do in that situation?" 

Her story, as she recognized, is all too common and reflects the repeated marginalization of many 

women by the Catholic hierarchy-the same women whose voices have been deemed unimportant 

by those on both sides ofthe recent debates. Sandra is just one of the many individuals whose 

conscience is not being protected by refusal clauses exempting entire institutions from covering their 

employees for services guaranteed to everyone else by the new law. 

Catholic teachings on conscience require due deference to the conscience of others in making 

decisions-that the employer should not be allowed to dismiss the conscience of the employee 

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seeking coverage for the healthcare services guaranteed to any other. In light of this precept, the 

public policy efforts of the hierarchy should take into account the experiences of individual Catholics 

as well as the beliefs of patients and clients, workers in social services and healthcare providers of 

other faiths and no faith, so that patients will not be refused any legal and medically appropriate 

treatment or be denied services they seek. 

You have heard from some conservative Catholics on this issue, but it would be a grave mistake to 

confuse the individual positions of a few powerful interest groups with the majority view of the more 

than 68 million Catholics in the United States. For Catholic employers to claim to be the arbiter of any 

person's good conscience is clearly disingenuous. When medical professionals refuse to provide legal 

reproductive health services, or provide timely referrals to other providers, they violate the right to 

conscience of the person seeking those services. This does not fall under anybody's definition of a 

good conscience. Catholics for Choice and the majority of Catholics respect everybody's individual 

conscience and their ability to act in accordance with their personal beliefs. However, we expect the 

hierarchy and their allied organizations, in keeping with the teachings of our shared Catholic faith and 

our American tradition, to respect our consciences and the consciences of the patients and clients 

who seek the services they need. We hope that those who serve to represent all of us in public service 

and in government will respect our consciences, too. 

Protecting the freedom of conscience for all Americans no matter what their beliefs may be--for the 

atheist, for the employee of a Catholic institution, for the sexual assault victim who seeks care at a 

Catholic hospital-is indeed the job of the government. Expanding individual refusal clauses to 

include institutions and exemptions for religious institutions to deny the rights of all would sacrifice 

these people's rights. Public policy should be implemented to further the common good and to 

enable people to exercise their conscience-based healthcare decisions. 

Lawmakers of all political hues can come together to support a balanced approach to individual 

conscience rights and access to comprehensive healthcare.lt makes sense for all those who want to 

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provide more options to women seeking to decide when and whether to have a child. It makes sense 

for those who want to keep the government's involvement in healthcare to a minimum. And it makes 

sense for those who think that it is the government's role to facilitate the healthcare decisions that 

people want to make. Above all, it makes sense for a society that believes in freedom of religion-a 

right one can't claim for oneself without extending it to one's neighbor. The bottom line is that 

protecting conscience rights and preserving access to care shouldn't just be about protecting those 

who seek to dictate what care is and is not available to all. Nor should it be for those who would 

dismiss the conscience of others by imposing their view of which consciences are worth protecting. 

Protecting individual conscience and ensuring access to affordable, quality care is not just an ideal, it is 

a basic tenet of our society and it is the right thing to do. 

I thank the Subcommittee for inviting me today and for your attention. I look forward to any questions 

Members may have. 

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Mr. PITTS. The Chair thanks the gentleman and recognizes Mr. 

Cox for 5 minutes for an opening statement. 

STATEMENT OF WILLIAM J. COX 

Mr. COX. Good morning, Mr. Chairman and members of the committee, and thank you for convening a hearing on this critically important matter. My name is Bill Cox and I am president and CEO 

of the Alliance of Catholic Health Care, which is based in Sacramento, California. We represent 4 Catholic systems in California 

that operate 54 hospitals. 

My testimony focuses on the exceedingly narrow definition of religious employer in HHS’s interim final rule. 

You have a copy of my extended remarks, so I will summarize 

them by making four brief points about the definition and the mandate. 

First, in order to benefit from the definition, a religious institution must primarily employ and serve its coreligionists and it must 

proselytize. As an essential element of the religious missions 

Catholic hospitals, universities, and social services hire and provide 

services to a broad array of people and they do not proselytize 

those they serve. Thus, the definition, together with the mandate, 

will require Catholic hospitals, universities, and social service 

agencies to cover in their health insurance plans contraceptives, 

abortifacients, and sterilizations in direct violation of their religious beliefs. 

Mr. Chairman, Catholics have been providing healthcare services 

in California since 1854 when eight Sisters of Mercy arrived in San 

Francisco from Ireland. The following year, a cholera epidemic 

broke out and the Sisters went to work in the county hospital. According to San Francisco’s ‘‘The San Francisco Daily News’’ of that 

time, ‘‘the Sisters of Mercy did not stop to inquire whether the poor 

sufferers of cholera were Protestant or Catholic, American or foreigners, but with the noblest devotion, applied themselves to their 

relief.’’ 

Mr. Chairman, had HHS’s definition of religious employer been 

in effect in 1854, the ministry of the Sisters of Mercy in San Francisco would not have been considered by the Federal Government 

to be a religious ministry. 

Second, I think it is very important to emphasize this morning 

that neither the propriety nor the wisdom of nor the government’s 

authority to impose a contraceptive mandate on all employers is at 

issue here. The question is actually a very narrow one related to 

the First Amendment, and that is whether the HHS definition of 

religious employer contravenes the First Amendment by putting 

the Federal Government in the position of determining what parts 

of a bona fide religious organization are religious and what parts 

are secular. 

In particular, it allows the government to make such distinctions 

in order to infringe the religious freedom of that portion of the organization the government declares to be secular. This is exactly 

what the founders of this country sought to avoid by adopting the 

First Amendment to the Constitution. 

Third, the definition is discriminatory in that it tracks identical 

language first enacted in a California statute that was deliberately 

164 

designed to contravene the religious conduct of religious organizations such as Catholic hospitals, universities, and social services. 

At the time, one of the principal proponents of that definition of religious liberty said our purpose and intent here is to close the 

Catholic gap. That is, we want to compel these religious institutions by force of law to provide these services regardless of what 

they may think of them in terms of their religious belief. 

Fourth, there is no escape from the HHS mandate. Unlike most 

State contraceptive mandates that have a similar definition of religious employer, religious employers cannot avoid the HHS mandate 

by either dropping coverage of prescription drugs or by self-insuring through an ERISA plan. 

In conclusion, I would just like to note that Catholic hospitals 

provide a broad array of services not always available in other institutions. For example, in California 86 percent of our hospitals 

have palliative care programs compared to only 43 percent of all 

California hospitals. Our palliative care programs address the 

physical, emotional, and spiritual needs of chronically ill and dying 

patients and their families. 

Moreover, a recent Thomson Reuters study found that on 8 key 

metrics Catholic healthcare systems in the United States were significantly more likely to outperform their nonprofit and investorowned counterparts on quality, efficiency, and patient satisfaction. 

It would be a great loss to the Nation and the communities we 

serve if our hospitals were compelled by Federal law to forgo their 

religious mission and consciences in order to comply with the HHS 

contraceptive mandate. 

I would be happy to answer any questions. 

[The prepared statement of Mr. Cox follows:] 

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Testimony of William J. Cox 

President & CEO, The Alliance of Catholic Health Care 

Before the Energy & Commerce Committee's Subcommittee on Health 

"Do New Health Law Mandates Threaten Conscience Rights and Access to Care? 

Wednesday, November 2, 2011 

2123 Rayburn House Office Building 

Good morning. Mr. Chairman, thank you for convening a hearing on this critically important 

topic, and for your longstanding leadership defending the right to life and protecting the 

conscience rights of health care providers. The title of this hearing asks ifnew health law 

mandates threaten conscience rights and access to care. The answer to this question is an 

unequivocal yes; and, if left unaddressed, these mandates will force providers and others of 

conscience to choose between violating their consciences or no longer providing or paying for 

health care and other services, and curtailing access to care, particularly for some of the most 

vulnerable among us. 

My name is Bill Cox. For the past 12 years, I've had the privilege of serving as President and 

CEO of the Alliance of Catholic Health Care. Based in Sacramento, the Alliance represents four 

hospital systems that operate 54 hospitals and more than 40 nursing homes, hospices, assisted 

living and other facilities and services throughout thc state of California. Catholic providers 

account for about 16 percent of all California hospitals and provide three quarters of a billion 

dollars annually in charity care and community benefits. 

This proud Catholic legacy of providing health care to California's most vulnerable extends 

nearly 160 years to the 1854 arrival of eight Sisters of Mercy in San Francisco, who created a 

safe haven for abandoned women, prostitutes and young girls and provided care to the city's 

elderly and ill residents. When a cholera epidemic struck San Francisco the following year, the 

Sisters of Mercy went to work in the county hospital. According to San Francisco's The San 

Francisco Daily News of that time, "The Sisters of Mercy ... did not stop to inquire whether the 

poor sufferers were Protestant or Catholic, Americans or foreigners, but with the noblest 

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devotion applied themselves to their relief." 1 The San Francisco board of supervisors 

subsequently petitioned the Sisters to operate the first county hospital. 2 Two years later, the 

Sisters of Mercy founded St. Mary's Hospital. Communities of Catholic sisters have repeated this 

type of selfless commitment to serve all in need countless times throughout our nation's history 

and today more than 600 Catholic hospitals serve patients, families and communities across the 

United States. 

Health Care Provider Conscience Rights Under Attack 

Recently, the United States Department of Health and Human Services (HHS) turned its back on 

the contributions of Catholic health care and undid centuries of religious tolerance by adopting 

an Interim Final Rule on Preventive Health Services, which includes an exceedingly narrow 

definition of religious employer. 

My testimony focuses on the definition of religious employer in HHS's interim final rule. This 

definition tracks identical language first enacted in a California statute, and was deliberately 

designed to contravene the religious conduct of religious organizations, such as Catholic 

hospitals, universities and social services. Specifically, both the California statute and HHS's 

interim final rule exempt a religious employer only if the employer meets all of the following 

criteria: 

I) Its purpose is the inculcation of religious values; 

2) It primarily hires people who share its religious tenets; 

3) It primarily serves persons who share its religious tenets; and 

4) It is a non-profit organization under Internal Revenue Code section 6033(a)(3)(A)(i) or 

(iii), (i.e., it is a "church" or "integrated auxiliary of a church").} 

I Fialka, John 1. Sisters Catholic Nuns and the Making of America. Page 85 

, http://www.stmarysmedicalcenter.org/WhoWeAre/History/index.htm 

J The legislative record from the California Gene':;;l Assembly clearly establishes that the authors and sponsors of 

the California religious employer exemption specifically designed it to exclude Catholic religious institutions, 

especially Catholic hospitals, universities and social service agencies. (Catholic Charities a/Sacramento Inc. v 

Superior CalirI 32 Cal. 4th 527, 541-47 (2004).) 

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The first thing to be noted about this definition is that had it been operative in 1854 it would not 

have recognized the health care ministry of the eight Sisters of Mercy in San Francisco as 

religious: the Sisters of Mercy neither proselytized the cholera victims they cared for, nor did 

they limit their care to Catholics only. 

HHS's definition of religious employer raises a fundamental question: may the government 

determine what parts of a bona fide religious organization are religious and what parts are 

secular? And, in particular, may the government make such distinctions in order to infringe the 

religious freedom of that portion of the organization the government declares to be secular? 

Neither the propriety, nor the wisdom of, nor the government's authority to impose a 

contraceptive mandate on U.S. employers is at issue here. "The question is a very narrow one. 

May the government impose a mandate on a religiously affiliated employer that requires the 

employer to pay for contraceptives - in violation of a an acknowledged religious tenet - or to 

redefine what constitutes religious conduct?,,4 

As former California State Supreme Court justice Janice Brown aptly noted, "A strong argument 

can be made that it was the primacy of religious liberty in the early history of this country, with 

its acknowledgement of the separate spheres of church and state, that gave rise to our notions of 

limited government and equal protection the constitutional precursors of our antidiscrimination laws. '[T] he division between temporal and spiritual authority gave rise to the 

most fundamental features of liberal democratic order: the idea of limited government, the idea 

of individual conscience and hence of individual rights, and the idea of civil society, as apart 

from government, bearing primary responsibility for the formation and transmission of opinions 

and ideas:s 

"Our ability to create a space for religious perspectives is both instrumental and regenerative for 

democracy. Religious institutions enhance individual autonomy 'by challenging the power of the 

4 Dissenting opinion, J. Brown, Catholic Charities a/Sacramento v California. 

5 McConnell, Why is Religious Liher!v the "First Freedom'" (2000). 

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liberal state' 6 and by articulating alternative visions - 'counter-cultural visions that challenge and 

push the larger community in .,. directions unimagined by prevailing beliefs.' 7 By protecting 

religious groups from gratuitous state interference, we convey broad benefits on individuals and 

society. By underestimating the transformative potential of religious organizations, we 

impovcrish our political discourse and imperil the foundations of liberal democracy."s 

This is certainly true of Catholic hospitals, which fulfill their religious mission by providing 

valuable health serviccs not always available in other hospitals. For instance, Catholic hospitals 

in California are leaders in the provision of palliative care programs that promote quality oflife 

for patients living with serious, chronic or terminal illness - 86 percent of Catholic hospitals 

have palliative care programs compared to 43 percent of all California hospitals. Other services 

that are more often found in Catholic hospitals include neonatal intensive care units (NlCU). 

pediatric care beds. maternity care and coronary care units. Furthermore, a recent independent 

national study by Thompson Reuters found that on eight key measures Catholic-owned systems 

are "significantly more likely to provide higher quality performance and efficiency to the 

communities served" than their nonprofit and investor-owned counterparts. 9 

HHS's Definition of Religious Employer is Discriminatory 

The definition of religious employer created in California and now being utilized by HHS did not 

occur in a vacuum. As the legislative history of the California contraceptive mandate makes 

clear, the highly flawed definition of religious employer was painstakingly crafted by the 

American Civil Liberties Union (ACLU) to specifically exclude religious institutional missions 

like health care providers, universities and social service agencies. In fact, in testimony before a 

state Senate committee, the head of Planned Parenthood in California at thc time went so far as 

to say that the wording was designed to close the "Catholic gap" when it comes to contraceptive 

coverage. And in a floor statement, the principal legislative author of the state senate definition 

of religious employer argued, "59 percent of all Catholic women of childbearing age practice 

G Noonan, The End of Free Exercise? (1992) 42 De Paul L. R. 567, 579-580. 

7 Brady, Religious Organizations and Mandatory Coliective Bargaining Under Federal and Siale Labor Laws' 

Freedom From and For (2004) 49 ViiI. L.Rev. 77, 156. 

8 J. Grown, Dissenting Opinion, Catholic Charities of5,acramento v California, 

q Differences in Health System Qualizv By Ownership Type, Thomson Reuters, August 20 I 0). 

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contraception [and] 88 percent of Catholics believe ... that someone who practices artificial birth 

control can stili be a good Catholic, .. and then stated, '"I agree with that. I think it's time to do 

the right thing" (italics added). 10 

HHS's Contraceptive Mandate Is More Radical than California's 

As bad as the California contraceptive mandate it. it is less onerous than HHS's mandate, as its 

reach is limited to employers that provide an outpatient prescription drug benefit, it does not 

cover sterilizations and it does not preclude a religious employer from opting out of the mandate 

by self-insuring under ERISA. By contrast. HHS is proposing a far more radical approach by 

requiring that all types of health plans include ali FDA-approved contraceptive methods as well 

as sterilization procedures and related patient "education and counseling." In requiring the 

coverage of all FDA-approved contraceptive methods, the interim final rule mandates at least 

one drug that is analogous to RU-486 and can cause an abortion when taken to avoid pregnancy. 

This specific component of the mandate is in direct violation of longstanding federal conscience 

law, the Hyde-Weldon amendment, which protects health care providers from discrimination by 

government entities for refusing to perform, participate in, pay for or refer for abortions. 

Moreover, the HHS mandate precludes religious employers from opting out of its requirements 

by self-insuring as ERISA plans. 

HHS's Contraceptive Mandate is the Most Radical in the Nation 

The I-II-1S proposed rule is not only more radical than California's; it is the most radical of the 28 

state contraceptive mandates. 

• Not a single state requires that all plans cover contraceptives. Every state. rather. 

specifically exempts ERISA self-insured plans. 

• Only two states require that contraceptives be covered in plans that do not provide 

prescription drug coverage. 

Only one state requires that sterilizations bc covered. 

10 Remarks ofSenater Speier, Sen. Floor Debate on Assem. Bill No 39 (1999-2000 Reg. Sess.) Sept. 7.1999. p. 7. 

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When compared to these 28 state mandates, the facts are clear: The HilS contraccptive mandate 

is designed to institute the most stringcnt of mandates - including sterilization and plans that do 

not offer other prescription coverage -and the narrowest of conscicnce-rights exemptions. If not 

corrected, this will create a perfect storm that will violate the religious freedom and right to 

conscience of an untold number of employers institutional and individual- and jcopardize 

access to vital health, education, and social services. 

Disproportionate Impact on Catholic Institutions 

While many employers of conscience - both religious and others - will be negatively affected by 

the rule, Catholic institutional ministries, such as hospitals. universities and social services, will 

suffer disproportionately. These Catholic institutional ministries all share distinct characteristics 

that include: 

An unqualified commitment to Christian service not calculated to inculcate religious 

values; 

A commitment to invite all people of goodwill, regardless of their religious beliefs, to 

serve with them in the operation of these ministries; and 

A commitment to serve all people in need, regardless of race, creed, national origin. or 

econom ic status. 

A fundamental principle of religious freedom is the right of religious institutions to autonomy in 

their self-definition and governance. Simply stated, churches and religious institutions have the 

right to define and govern themselves free from government interference and entanglement. The 

HHS exemption violates this right by redefining Catholic institutional ministries in a manner that 

excludes central clements of their faith. HHS simply lacks the constitutional capacity to establish 

a definition of religious ministry that runs counter to a religious organization'S understanding of 

it - absent a compelling governmental interest that warrants state interference in a manner 

narrowly tailored to avoid burdening the exercise of this right. The interim final rule has 

identified no such compelling interest. 

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The extremely narrow character of the HHS's definition of religious employer offers Catholic 

institutional ministries a Hobson's choice: cooperate under governmental compulsion with 

conduct that is inconsistent with their religious and moral beliefs, or cease functioning 

altogether. It is particularly ironic that HHS is substantially burdening Catholic institutional 

ministries because they respectfully avoid inculcating religious beliefs, and compassionately 

serve persons of all faith traditions and those having no faith tradition at all. It is the latter 

population that will be the co-victim, along with Catholic ministries, if this rule is left 

unchanged: 

The single mother seeking to better life for her family by pursuing a GED at Catholic 

Charities; 

The family who finds itself homeless because of the economic downturn and reliant upon 

Catholic social services for food and shelter; 

• The young child living in a dangerous community who is able to free himself of the 

shackles of poverty by attending a Catholic school; and 

The poor woman in need of urgent and expensive health care services without ability to 

pay for them. 

As I noted earlier, our members in California alone provided $765 million - more than three 

quarters of a billion dollars in charity and related unreimbursed health care alone in 2007. 

Each of us should seriously weigh the impact on society that would arise if all of these 

institutions were forced to abandon their religious missions. 

Fixing the Problem 

HHS can solve this specific problem immediately by changing its rule to expand the definition of 

religious employer. I specifically suggest that HHS start by borrowing from the definition of 

religious employer included in Title 26, Section 414 of the Internal Revenue Code. Additionally, 

while such a change would address institutional employers, HHS should also amend the rule to 

ensure that individuals and non-religious employers arc similarly protected. On that point, the 

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Illinois Health Care Right of Conscience Act would be a worthy model because of the broadbased level of conscience protection it provides. 

Should HHS decline to make such substantive changes, it is incumbent upon Congress to take 

appropriate action induding, if necessary, measures to prevent the Department from moving 

forward to implement its discriminatory mandate absent broad and effective conscience 

protections. 

Conclusion 

Nearly 160 years ago, the Sisters of Mercy responded with compassion and care when 

government was unable to tend to the victims of the San Francisco cholera epidemic. Today, it is 

time for government to honor this noble legacy by strengthening once and for all federal 

conscience protections so all health care providers today, tomorrow and well into the future can 

carry out their vocations absent the threat of government discrimination. 

Thank you for your time. I look forward to answering questions members of the Committee may 

have. 

Page I 8 
173 

Mr. PITTS. The Chair thanks the gentleman and thanks all the 

witnesses for their opening statements. 

I will now begin the questioning and recognize myself for 5 minutes for that purpose. 

Mr. Cox, the Church amendment which became part of the Public Health Service Act in 1973 declares that hospitals’ or individuals’ receipt of Federal funds in various health programs will not 

require them to participate in abortion and sterilization procedures 

if they object based on moral or religious convictions. Also, no State 

in the country except Vermont requires insurance coverage of sterilization. How is the interim final rule on preventive services issued 

by HHS subsequent to passage of the healthcare law different in 

respect to conscience protections and sterilization mandates? 

And what are the implications for Catholic healthcare providers? 

Mr. COX. Well, these are requirements that would force Catholic 

healthcare providers, Catholic universities, and social service agencies to include contraceptive services, sterilization, and other things 

in their health insurance plans in violation of their religious beliefs. And that is how it would affect them. 

Under most State laws there are options that we have available 

to us. One, if for instance in California a religious employer can 

drop prescription drug benefits entirely in their health insurance 

plan and get out from under California’s contraceptive mandate. 

We have chosen not to do that because that would make absolutely 

everyone else worse off in our employ. But what we have done is 

moved to ERISA plans in order to self-insure and get out from 

under the mandate. 

Now, under the HHS mandate and definition of religious employer, as I said in my testimony, there is no escape. ERISA plans 

will be covered. All employers are required, regardless of religious 

views, to cover these services. 

Mr. PITTS. The supporters of the interim final rule on preventive 

benefits argue the substance of the rule is similar to contraceptive 

mandates imposed by States on health plans operating within their 

State. Just as you said, the question was do State contraceptive 

mandates apply to self-insured plans governed under ERISA? And 

does the HHS rule differ in this respect? You spoke to that. 

Do State contraceptive mandates typically require coverage of 

sterilization procedures? 

Mr. COX. They do not. I think Vermont is the only State that 

does. 

Mr. PITTS. Do State contraceptive mandates force plans to cover 

such products even if they do not provide coverage for prescriptive 

drugs generally? 

Mr. COX. I think the laws in the various States differ with respect to that, and many of the States that have a contraceptive 

mandate also have pretty strong and effective conscience legislation 

that allows religious employers and providers with a moral perspective on this to opt out of the mandates. 

Mr. PITTS. Thank you. 

Let me go to Dr. Stevens. You said that the contraceptive mandate ‘‘violates the religion and free speech clauses of the First 

Amendment of the Constitution by coercing faith-based healthcare 

ministries to not only violate their very faith-based tenets that 

174 

have motivated patient care for millennia but also to pay for that 

violation. Such conscience-violating mandates will ultimately reduce patients’ access to faith-based medical care, especially depriving the poor and medically underserved population of such care.’’ 

Do you believe that the particular mandate could contribute to 

faith-based providers leaving the medical profession, reducing access to medical care, and are you concerned that faith-based providers might leave certain areas of medical care? 

Mr. STEVENS. We are seeing a pattern from this administration 

to restrict conscience rights, including stripping regulations, deregulation. We actually surveyed our membership and 88 percent 

of them say the problem is getting much worse. The issues we are 

talking about today I never talked about during my training. And 

we are also seeing people coming under increasing discrimination 

in the workplace. 

One of my staff member’s wife, a family practice doc, worked in 

Texas. She did not distribute contraceptives to single women, referred them across the hallway to another physician, and it wasn’t 

even an inconvenience for them, and she was told she was going 

to lose her job and she had to go find other employment within a 

week. We have seen this with anesthesiologists; we have seen this 

with the family practice docs. Just this week, 12 nurses in New 

Jersey have been forced to participate in abortion in the workplace 

and there is a suit being brought at the medical school there. This 

is a pattern that concerns all of us because we have 16,000 members. They have over 125,000 doctors that we are in regular communication with. They are very concerned about this and it could 

affect healthcare in this country. 

Mr. PITTS. Thank you. My time has expired. 

The Chair recognizes the ranking member, Mr. Pallone, for 5 

minutes for questions. 

Mr. PALLONE. Thank you, Mr. Chairman. 

I would ask unanimous consent to insert in the record statements from the following organizations: Concerned Clergy for 

Choice; National Council of Jewish Women; Religious Institute; 

United Church of Christ—Justice and Witness Ministries; Women’s 

Alliance for Theology, Ethics, and Ritual, or WATER; Physicians 

for Reproductive Choice; Religious Coalition for Reproductive 

Choice; General Board of Church and Society of the United Methodist Church. I believe you have all these. 

Mr. PITTS. Without objection, so ordered. 

[The information follows:] 

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Concerned Clergy for Choice 

Rabbi Dennis S. Ross, Director 

The Education fund of 

Family Planning Advocates of NYS 

1 7 Elk Street 

Albany, NY 12207 

Phone: (518) 436-8408, ext. 238 

Fax: (518) 436-0004 

dennis@fpaafnys.org 

www.edfundfpa.org\clergy 

Statement on Religious Refusals for Providers 

October 31, 2011 

Concerned Clergy for Choice, a network of 1,000 religious leaders from a wide spectrum of 

denominations, is distressed by the call to expand religious refusals for providers. We emphasize 

the moral priority of ensuring access to basic, preventive health care services -including 

reproductive care, contraception and medically accurate information. As pastors providing support 

to women and families facing medical need and decisions, we underscore the ethical high ground 

in protecting the conscience ofthe patient. 

Many faiths honor the moral wisdom of making contraception available, so that women and 

families can plan their pregnancies for when they believe the time is right, with outcomes of 

stronger, healthier children and households. As pastoral counselors, we witness the urgency in 

protecting each woman and man weighing personal beliefs, faith teachings and the needs of those 

who rely on them; the conscience of the patjent comes first. 

We are deeply troubled that some groups a~e turning to refusal policies as an opportunity to 

impose their religious restrictions on peopTe in medical need. We well understand that some 

communities oppose certain medical procedures, as when Jehovah's Witnesses reject blood 

transfusions and in the Orthodox Jewish history of shunning organ transplants. However, leaders 

of those communities do not advocate for public policies that would establish their particular faith 

strictures as law. Thus, we are distressed by the efforts to impair access to reproductive health care 

- through insurance restrictions, defunding attempts, and in this case, religious refusal protections 

- that, from our perspective, conceal an unwavering passion to elevate one set of faith restrictions 

above all others, including ours. 

In considering the proposed expansion of religious refusal protections for providers, we urge our 

policy makers to firmly resist the pressures to single out and favor any single faith among the 

many. Instead, we call upon our leaders to ensure that women and families across our nation can 

obtain the essential care they believe to be right for them, including basic, preventive and essential 

medical services- such as contraception - thereby contributing to stronger households and the 

moral fabric of our communities, 
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W~sh,ngtonOfficc 

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Statement of National Council of Jewish Women on 

Proposed Religious Restrictions to Health Care 

Written Testimony Prepared for Hearing TItled. 

"Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" 

Submitted by Nancy K. Kaufman, CEO, National Council of Jewish Women 

US House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Health 

November 2, 20 II 

The National Council of Jewish Women (NCJW) is a grassroots organization of ninety.thousand 

volunteers and advocates who turn progressive ideals into action. Inspired by Jewish values, 

NCJW strives for social justice by improving the quality of life for women, children, and families 

and by safeguarding individual rights and freedoms. Founded in 1893, NCJW is among the oldest 

Jewish organizations for women in the US; and we are proud of our long history of support 

for the protection of every woman's right to reproductive choices. 

NCJW believes strongly that comprehensive, quality. affordable health care sen'ices for women 

are essential to their well-being. health. and economic security. NCJW applauds the US 

Department of Health and Human Sen'ices (HHS) for supporting the Institute o( Medicine's 

(10M) July 20 II gUidance on expanding access to key clinical preventive services for women; yet. 

we are troubled by the inclusion of the proposed "religious employer exemption," or refusal 

clause. Ensuring that a.U new insurance plans offer first-dollar coverage for women's preventive 

health services under the Patient ProteCtion and Affordable Care Act (ACA) will, in our view, 

enable more women to access critical care, leading (0 improved health, well-being, and economic 

security, NCJW believes that this expanded access must ensure that every woman, regardless of 

where or for whom she works. has the right to exercise her own moral judgment when making 

personal decisions, including family planning choices. 

NCJWs principles to protect all women's access to health care and every woman's right to 

moral agency in health care de~lsjon·making compel us to su-ongly oppose the Respect (or Rights 

of Conscience Act (HR 1179/5 1467) inu-oduced by Representative Jeff Fortenberry (R-NE) and 

Senator Roy Blunt (R-MO), This measure would expand the right of health workers, health 

insurance plans, hospitals, and other healthcare institutions to refuse to cover, provide, or refer 

for any sen'ice they deem morally objectionable, NCJW is deeply concerned about the 

dangerous implications of such a vast refusal policy, which would not onty deny women's access 
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to the full range of reproductive health care, but also obstruct other patient populations from 

obtaining needed care. 

What follows is an articulation of the particular provisions of the HHS ruling we support; as well 

as our concerns about the "religious employer exemption" component of the Interim Final R.ule 

and the similar policy contained in the Respect for Rights of Conscience Act. 

NCJW strongly supports each of the eight preventive services recommended by the 

10M, and we are pleased that HHS chose to adopt all recommendations including. in particular, 

contraceptive services and supplies. We are also particularly gratified by the indusion of 

screenings for intimate partner violence. Our organization has long worked for laws. policies, 

programs. and services that protect every woman from all forms of abuse. exploitation. 

harassment. and violence. Providing a pathway for women to be screened for current or past 

abuse in the health care setting will better ensure that victims of violence obtain the care and 

assistance they need. 

For NCJW. the protection of women's access to the full range of family planning services is a 

moral imperative. We have long supported comprehensive, confidential, accessible family 

planning and reproductive health servkes, regardless of age or ability to pay. because we believe 

that these services are an essential element of health care and preventive health. As Secretary 

Sebelius noted in an op-ed in the Huffington POSt in which she announced the HHS decision 

about the insurance guidelines for these key services, "[w]hen half of pregnancies in the US are 

unplanned, we know family planning services are an essential preventive service for women. 

These services are critrcal to appropriately spacing and ensuring intended pregnancies which 

results in improved maternal health and better birth outcomes.'" We agree, and would add that 

all women require accurate information and access to services in order to prevent unwanted 

pregnancies. 

Recent data show that the number of underinsured adults - those who face unaffordable 

medical costs despite having health insurance- rose by eighty percent between 2003 and 2010. 

This population's reported rate of foregone care was twice as high as those with more adequate 

coverageM.ln keeping with these trends, underinsured women face difficult choices when it 

comes to family planning, balancing needed health care with economic security. While some 

states have passed contraceptive equity laws requiring that insurers offering coverage for 

prescription drugs also cover FDA-approved contraceptive drugs or devices'

", and many 

employers cover birth control to some degree, financial barriers still impede insured women's 

access, Not all employers offer coverage for the full range of FDA-approved drugs. As such, too 

many women have found that cost barriers have prevented them from accessing the 

contraceptive supplies and related services that would be most effectlve for them"'. Removing 

these financial obstacles would support women's health and economic security by ensuring they 

no longer need to forego or delay needed care in order to afford other basic needs. Moreover, it 
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National Council of Jewish Women 

would enable more women to truly plan their families, allowing them to become pregnant when 

they are financially prepared to do so. NCjW believes that every woman must have the right to 

exercise her own moral judgment when making personal decisions. including those that impact 

her reproductive life and her economic security. Making contraceptioll widely available and 

affordable. as the new women's preventive health benefits are intended to do. will allow women 

to be the decision makers about the preventive care services they wish to acce1S.. 

While we are pleased that HHS chose to adopt aU of the 10M recommendations, we 

are deeply troubled by the Interim Final Rule's amendment proposing to exempt 

"certain religious employers" from the requirement to offer the contraceptive 

preventive health benefit to their workers. Restrictions that would prevent even one 

female worker from accessing affordable preventive care. as the proposed refusal clause would 

do, are unacceptable. Ensuring that all women, regardless of their employer, have access to key 

preventive contraceptive services is essential not only to women's health but also to women's 

equality, religiOUS liberty, and economic security. 

Denying female employees their right to the contraceptive benefit - without an alternative 

means to affordably access these services - risks their health, wellRbeing. and economic security 

by maintaining the Status quo where family planning services and supplies are inaccessible due to 

cost. The exemption in the interim final rule would unnecessarily I'Iarm a population of working 

women, from religious studies teachers and administrative professionals to lay leaders and clergy, 

who may not personally agree with the tenets of their faith·based employer when it comes to 

contraception. 

A recent study by the Guttmacher Institute showed that "most sexually active women who do 

not want to become pregnant ... practice contraception .... This is true for women of all religious 

denominations, including Catholics, despite the Church's formal opposition to contraceptive 

methods other than nawraJ family pla.nning."¥ Women who work at religiOUS institutions. 

irrespectlve of the doctrine espoused by those instit.ut:lons, still need a.ccess to ilffordable. 

effective birth control to avoid unintended or mistimed pregnancy. These women and their 

families deserve to have the same access to health care promised by the ACA as do women in 

other professional fields. A;nd yet, the proposed religious exemption would deny them this 

benefit, leaving burdensom~'out of pocket costs in place, and leaving women to make choices 

that may risk their health and .weIiRbeing. As such. NCJW submitted comments to HH5. urging 

the agency to revoke the proposed religious exemption from these insurance regulations. 

It is for similar reasons that NCJW strongly urges Congress to oppose the Respect for Rights of 

Conscience Act (HR 1179/5 1-467). This extreme proposal seeks to enact overly broad language 

to allow a range of health care "stakeholders" - induding health insurance pians, hospitals, 

healthcare workers. and employers - to refuse to cover or prOVide any medical service or 

preventative service otheNiise required by the ACA. if those stakeholders believe the care to be 
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Web WWW'Kj""org 

Notional Council of Jewish Women 

morally troubling. The bill allows these stakeholders legal recourse for violations of their right to 

refuse. but does not offer such a path for patients who are denied access to care. NCjW is 

concerned that this measure would both drastically restrict access to basic medical services, 

including sexual and reproductive health care, and permit discrimination against certain patient 

populations. Each of these consequences is egregious in and of itself - though each becomt!:s 

more dangerous because the legislation does not provide adequate protections for the patients 

seeking such care. 

The Respect for Rights of Conscience Act would restrict access to basic, preventive services, 

setting patients up for burdensome costs and other onerous barriers to care. As an example. 

under this proposal, a health worker could refuse to provide or refer for screening and 

treaunent for HIV or other sexually transmitted infections. Patients enrolled in health insurance 

plans which require referrals for such care to be covered by the plan will be left without any legal 

recourse or access to affordable, covered services. NCJW believes that this refusal clause would 

endanger patients by not ensuring alternative routes to care once access is denied. This outcome 

would impose discriminatory financial hardships on individuals seeking comprehenSive health 

care, and greatly impinge on patients' religious freedoms by restricting their abilfty to access care 

in keeping with their own religious or moral views. Moreover, should a patient needing 

emergency treatment be denied service. such as a woman with a life~threatening pregnancy 

complication. this refusal rule could potentially threaten a patient's life if an immediate referral is 

not made or alternative provider not found. 

In addition, the overly broad refusal language of this legislation suggests that health plans, 

providers, and other entities could discriminate against patients whose characteristics, 

presentation, or iIIne!is they find morally offensive or objectionable. This bill could allow 

healthcare workers the ability to refuse to treat patients who are gay, lesbian. bisexual, or 

transgender; or for a plan to refuse coverage of pre-natal or pregnancy sel"Vices for a woman 

who is unmarried. NCJW believes every individual has the right to quality, comprehensive, 

confidential, nondiscriminatory healthcare coverage and services. including mental health, that are 

affordable and accessible for all. We have long been committed to advancing the enactment and 

enforcement of laws and regulations that protect civil rights and individual liberties. By setting up 

a health system that would legally institutionalize diSCrimination by the healthcare inf~tructure 

against dasses of patients. we believe the Respect for Rights of Conscience Act violates principles 

of equality and individual religiOUS freedom. 

NCJW is deeply disturbed by this proposed expansion of so-called "conscience protections." 

which do not include safeguards or recourse for patients seeking care. Health profeSSionals and 

the organizations that support them have an obligation to ensure access to necessary services, 

whether directly or by referral to an accessible alternative healthcare provider. 
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As a faith.based women's organization, we understand that those who would restrict the 

services health entities can provide or cover, including limiting women's access to contraception 

or to other reproductive healthcare services, are often motivated by their religiOUS beliefsseeking to impose them on others. NCJW volunteers and advocates are inspired by their Jewish 

values, and have longed worked for the elimination of obstacles that limit reproductive freedom 

and religious freedom. For NCJW, these two principles are closely linked: women must be able 

to make healthcare decisions and choices about their reproductive health based on their own 

needs, beliefs, and moral judgment, in consultation with their doctor or whomever they wish to 

involve. 

We also understand the desire of religious organizations to preserve their identity - and are 

fierce advocates for religious freedom in me workplace. Yet me refusal clause proposed in both 

me HHS regulation and in the Respect for Rights of Conscience Act would deny individuals meir 

rights, in favor of institutional doctrine; or deny one individual their right in (avor ofanother 

individual's belief system. We oppose these suggested religious exemptions and believe 

they go against our nadon's guarantee of equal rights and religiOUS rreedom. They 

would erode an individual's moral agency and religious liberty by impeding one's ability to make 

decisions about the hea!mcare mey wish to access based on their own conscience. moral values, 

or faith traditions - regardless of an employer or health plan's view of what is morally right or 

wrong. 

NCJW is one of me oldest faith.based organizations for women in the United States working to 

advance the well·being and statuS of women; improve the quality of life for women, children, and 

families; and safeguard individual rights and freedoms. NCJW applauds me HHS decision to make 

preventive health care more affordable for more women. We believe this is a step forward for 

justice in healm care. For far too long, financial barriers have prevented women from gaining 

ilccess to the care they need to stay healthy. plan their families, and support healthy pregnancies. 

However, NCJW opposes the "religious exemption" offered in the amended Interim Rnal Rule 

because it would harm women's health, equality. economic security, and religious liberty. We 

also oppose the drastic, dangerous and unnecessary expansions of refusal policies as proposed by 

the Respect for Rights of Conscience Act. Such refusal policies would unfairly preserve the cost 

barriers that the ACA was designed to overcome and would threaten women's health and access 

to care. NCJW believes that alf individuals. wherever and for whomever they work. deserve 

equal access to affordable preventive health care, including contraceptives, and to the historic 

new benefits set forth under the ACA. We believe that all individuals, regardless of their 

employer. heakh insurer, provider, or health history, deserve access to quality, comprehensive, 

non.</iscriminatory ilnd affordable healm care coverage and services. 

We appreciate the subcommittee's consideration of our testimony. 
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I Sebelius, K, (2011, August 1). Prevention at the Heart of Keeping Women Healthy, Huftington 

Post Retrieved from http://www.huffingtonpost.com/sec-kathleen-sebelius/prevention-at-theheart-o b 915187.html 

\, Schoen, c., Doty, M.M., Robertson, R.H., and Collins, S,R. (2011), Affordable Care Act Reforms 

Could Reducethe Number of Underinsured US Adults by 70 Percent. Health Affairs, 30(9):1762-

71, Retrieved from 

http:// conte nt. h e a Ith affa irs ,orgj content/30/9/ 176 2, full?i jkey=h E 02tU8XwcgZ6&keytype=ref&sit 

eid=healthaff 

III National Women's Law Center. (2010). Contraceptive Equity laws in Your State: Know Your 

Rights - Use Your Rights, A Consumer Guide. Retrieved from 

http://www.nw!c.org/resource!contraceptive-eguitv-laws-your-state-know-your-rjghts-use~yourrights-consum er-gu ide-O 

'v Sonfield, A. (20ll). The Case for Insurance Coverage of Contraceptive Services and Supplies 

Without Cost-Sharing, Guttmacher Policy Review, 14(1), Retrieved from 

http://www.guttmacher.ore/pubs/gor!14!I/gpr140107.html 

v Jones, R.I(" & Dreweke, J. (20ll), Countering Conventional Wisdom: New Evidence on Religion 

and Contraceptive Use. Retrieved from http:Uwww.guttmacher.org/pubs!Religion-andContra ceo tive-Use. pdf 
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~~ 1 , I RELIGIOUS INSTITUTE 

21 CHARLES STREET, 140 • WESTPORT, CT 06880. 203-222-0055. WWW.RELIGIOUsINSTITUTE.ORG 

Letter Submitted as Written Testimony for the Record 

TO: Members of the House Committee on Energy and Commerce, 

Subcommittee on Health 

RE: Hearing titled, "Do New Health Law Mandates Threaten Conscience Rights and 

Access to Care?" . 

DATE: November 2,2011 

Thank you for considering the Religious Institute's testimony on the proposed addition of a 

religious exemption to the Affordable Care Act. 

The Religious Institute is a multi faith advocacy organization with a network of over 5,300 

clergy and religious leaders across the country that support sexuality issues, including a 

woman's right to make her own decisions about contraception and reproductive health. 

More than 1,500 of those religious leaders have endorsed our Open Letter on Abortion as a 

Moral Decision which states that they " ... respect women and men's moral agency to make 

decisions about their sexuality and reproductive health without governmental interference or 

legal restrictions," and that "Women must have the right to apply or reject the principles of 

their own faith without legal restrictions." 

We are heartened that the Affordable Care Act, supported by the Institute of Medicine's 

recommendations, recognizes that women should have access to contraception as part of 

well-woman care, without regard to income or employer. For the same reason, we oppose 

the proposed religious exemption because where a woman works should not impact her 

ability to obtain insurance for basic services she may choose to use based on her own 

informed conscience. 

The Rev. Debra W. Haffuer, 

Executive Director 
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STATEMENT FROM THE UNITED CHURCH OF CHRIST 

CONCERNING THE PROPOSED EXPANSION OF RELIGIOUS EXEMPTIONS 

ON MANDATED CO-PAYS FOR CONTRACEPTION 

UNDER THE AFFORDABLE CARE ACT 

Submitted by the Rev. lois M. Powell 

Justice & Witness Ministries, United Church of Christ 

November 2, 2011 

The United Church of Christ came into being when two mainline Protestant 

denominations merged in 1957. One of those denominations, the Congregational 

Church, traces its roots In this country back to the landing of the Pilgrims at Ptymouth 

Rock. These Christians fled their homeland seeking a new place where they CQuid 

freely exercise their religious beliefs. Those who drafted the Constitution of the 

United States of America were strongly convinced that the newly formed United States 

of America would be a place where all could freely follow the tenants of their religious 

beliefs. 

Today we live in a political and cultural reality far more diverse than that small 

band of Pilgrims and we have been guided by - and have amended to reflect new 

realities - that same Constitution and Bill of Rights. But sadly, the religious views of 

the majority of U.S. citizens are not respected when it comes to highly charged issues 

like reproductive health care. Only a very narrow religiOUS perspective is heard - a 

perspective that is well-funded and politically motivated. 

The vast majority of Americans approve of the use of contraception as a 

method of family planning and to prevent unintended pregnancies, including 98% of 

Catholic women whose church hierarchy opposes the use of contraception. When 

politicians bend under the influence ofthose who want to restrict its access, a serious 

problem existsl especially for American women. 

The United Church of Christ has long supported full access to all methods of 

birth control and regards its use as a matter for couples to privately decide as they 

determine when and how many children to bring into this world. The Affordable Care 

Act includes coverage for contraception without a co-pay, a significant advance for 

women with limited economic means. The proposed regulation from the Department 

of Health and Human Services to exempt religious employers from providing this 

coverage to their employees - who mayor may not be adherents to the faith tradition 

of the organization - denies to some women a service they need during their 

childbearing years. It is not the responsibility of employers, even faith-based 

employersl to monitor the private behavior of their emp!oyees or to force conformity 

to religious beliefs which mayor may not be held by the employee. 

These same principles apply to the United Church of Christ's decision to 

oppose the Hyde Amendment which restricts the use of public funds to pay for 

abortion services because it unfairly places a burden on low-income women to access 

a legal medical procedure available to other women. All women covered by insurance 

plans available through the Affordable Care Act should have equal access to 

contraception and to any essential or preventive health service guaranteed under the 

Act. Whether or not they chose to use birth control should be determined by them .. 

not by politicians or employers. 

God is still speaking,' _vJ::'._ ,i, 
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water-_ 

Women's Alliance for Theology, Ethics, and Ritual 

To: House Committee 

From: Mary E Hunt, Ph.D. 

Re: Religious exemptions 

October 31, 2011 

Below is the letter to HHS Secretary Sebelius that! drafted and signed along with a dozen 

Roman Catholic theologians. We believe that health care is the right and responsibility of each 

person such that no religious exemptions are necessary or good when it comes to reproductive 

health care. Ours is a thoroughly grounded Catholic opinion shared by millions of American 

catholics. 

Thank you for considering my faith-based view on this important matter. 

Mary E. Hunt, Ph.D. 

Co-<iirector, Women's Alliance for Theology, Ethics and Ritual (WATER) 

September 14,2011 

Dear Secretary Sebelius, 

We Catholic theologians appreciate the provision of preventive services and the 

elimination of cost sharing in the Affordable Care Act of 2010. This is a major step toward the 

goal of affordable, accessible health care for aiL We respectfully request that you eliminate the 

proposed religious exemptions because lhey are unnecessary and unjust Instead, we suggest 

that you let citizens make their own choices about which medical services they use, In our 

opinion, this is the best way to respect the variety of religious views within and among our faith 

traditions and to live responsibly in a pluralistic democracy. 

Let us clarify several Catholic dimensions of this discussion, First, the sensus f1deliumthe graced and experience*fed wisdom of the faithful which has always been one of the sources 

of truth in the CathOliC tradition-among American Catholics is clear on the matter of 

contraception, the only area that is covered by the exemptions. The overwhelming majority of 

CathOlics favor contraception and use it. The majority of Catholic moral theologians hold that 

artificial contraception is a moral option and, in some instances, even a moral mandate, 

We understand that the United States Conference of Catholic Bishops continues to hold 

a public position in opposition to most birth control methods. Catholic theologian Christine Gudort 

notes that ~when Humane Vitae, the papal encyclical retaining the ban on artificial contraception, 

was issued in 1968, the Episcopal conf~~ces of 14 different nations issued pastoral letters 

assuring their laity that those who could (lot in good faith accept this teaching were not sinne~. ~ 

While the bishops have every right to speak for themselves and to make their own medical 

choices, most rank and file Catholics simply disagree with them and make differing choices on 

this matter, No one is forced to use contraception, but all deserve access to it as part of regular 

medical care. To permit exemptions that adversely affect countless women based on the views of 

a tiny religious minority seems to us unfair and unwise. 

8121 Georgia Avenue. Suiie 310. Silver Spring, MD 20910-4933. USA 

301.589.2509· FAX 301.589.3150· water@hers.com • ............w.hers.com/water 
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Second, Catholic teachings respect and encourage the exercise of conscience. Thomas 

Aquinas wrote that conscience is "reason attempting to make right decisions: The Second 

Vatican Council called conscience a person's "most secret core and sanctuary." We expect 

ourselves and our fellow Catholic to form our consciences in ways that are consistent with the 

Christian tradition. But we do not coerce one another, nor do we tolerate the coercion of others, 

whether Catholic or not. 

Regulations that would allow religious institutions to dictate the medical care of their 

employees encroach on conscience. We are especially concerned about regulations that would 

allow employers to penalize persons who make choices that go against certain debated religious 

teachings. This is taking the conscience of another into one's own hands, decidedly not a 

Catholic teaching. 

Third, the well being of women, including reproductive health care, is a Catholic value. 

We are gratified that the U.S. Department of Health and Human Services recognizes 'the need to 

take into account the unique health needs of women." We trust that the guidelines developed by 

the Institute of Medicine reflect the best way to meet those needs. Consequently, we see no 

medical or religious justification for exempting employers from paying for some necessary 

aspects of women's health care. Just as HIV testing and mammograms are part of women's 

health care. so, too, is contraception recognized as an integral component by most other modern 

democratic societies. 

Fourth, workers' rights are a sacred part of a Catholic commitment to justice. These 

include the right to receive fair compensation. We would prefer that health care be available to all 

and not simply to those with jobs. But because the covered medical services in question are 

employer supported, medical coverage without exemptions is simply a fair labor practice. There is 

no Catholic teaching to support selective fairness. 

Finally, health care is conducive of the common good, a hallmark of Catholic social 

teaching. We see the Affordable Care Act as a step in the right direction, one of many steps 

toward narrowing the wealth gap and equalizing opportunities for all Americans. We strongly urge 

you to erase the asterisks that taint the proposed regulations with exemptions that will cost some 

women more to make healthy choices and will violate our covenant of 'justice for all: That is both 

Catholic and catholic. 

As Catholic theologians. we are pleased to partner with you in the creation of a just 

American society. We look forward to the new guidelines going into effect for everyone. 

Sincerely, 

Mary E. Hunt 

8121 Georgia Avenue. suite 310. Silver Spring, MD 20910-4933 • USA 

301.589.2509 • FAX 301.589.3.150 • water@hers.com • www.hers.comfwater 
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PW)-F',\lTll • PIW-F1\MILY • PHO-CllOlCC 

Statement of Reverend Dr. Carlton W. Veazey, President and CEO, 

Religious Coalition for Reproductive Choice, on Hearing, "Do New 

Health Law Mandates Threaten Conacience Righte and Access to Care?" 

US House of Representatives 

Committee on Energy & Commerce 

Subcommittee on Health 

November 2, 2011 

On behalf of the Religious Coalition for Reproductive Choice, thank you 

for this opportunity to comment on conscience clauses in health care law. 

The Religious Coalition for Reproductive Choice was founded in 1973 

and is the national organization of Christian, Jewish and other 

denominations a4d traditions with official positions in support of a 

woman's moral tight to make decisions about childbearing according to 

the dictates ofh~r conscience and religion. Member organizations are the 

Episcopal Church, Presbyterian Church (USA), General Board of Church 

and Society of the United Methodist Church, Women's Division of the 

United Methodist Church, United Church of Christ, Unitarian 

Universalist Association, the Reform) Conservative and 

Reconstructionist movements of Judaism, and other religious and 

religiously affiliated organizations. 

In October 1974, the board of directors of the Religious Coalition adopted 

a policy position opposing conscience clauses that remains in place today. 

It states: "All religious health institutions upon accepting public funds 

assume a public trust to llfiirm in practice the Jegal options for abortion." 

Religious Coaliti,Qn for Reproductive Choice member organizations hold 

that medical institutions that 1) employ a diverse workforce, 2) serve a 

diverse population, 3) have a secular purpose such as the provision of 

medical care, 4) receive public funds, and 5) are major service providers 

must be held to their responsibility to serve the public rather than 

restricting servic'es to conform to their own religious beliefs. 

Continuously since 1973, the Religious Coalition has opposed religious 

exemptions for public institutions as a violation of both the separation of 

church and state and the exercise of individual conscience. 
187 


75050.165

Plw-F,\ITll • PHO-F1\MILY • P1W-Cll(JJU:: 

As a religious coalition that honors individual conscience, we hold that, in keeping 

with the constitutional right to exercise one's religious beliefs without government 

interference, individuals should have the right to opt out of performing health care 

services to which they are religiously or morally opposed. Truly religious 

institutions-a church, a monastery, a seminary--should also be able to act in 

accordance with their belief systems. 

However, in this pluralistic nation, we are committed to protecting the rights of alL 

Patients have the right to legal health care services and their access to these 

services must not be affected by physicians who opt out of providing them. As well, 

health care providers must not be prohibited from performing services that are legal 

and necessary. 

Institutions operating with public funns and serving the public should not be 

allowed to impose beliefs about health care on entire communities and all of their 

patients. This is especially critical in communities where a religiously affiliated 

institution is the only or main service provider. Such is the case in geographically 

isolated areas where a growing number of Catholic hospitals have been federally 

designated as "sole providers," even though Catholics constitute a minority ofthe 

population. Nevertheless, Catholic restrictions on reproductive health care apply to 

all patients, regardless of their beliefs. 

Unnecessary: The proposed religious exemption in the Patient Protection and 

Affordable Care Act is unnecessary because the right to refuse to perform services 

that an individual objects to on moral or religious grounds has been enacted in law 

since 1973 with the Church Amendment. The Church Amendment prevents the 

government from requiring health care providers or institutiens to perform or assist 

in abortion procedures against their moral or religious convictions. It also prevents 

institutions that receive federal funds from taking action against employees because 

of their participation, nonparticipation or beliefs about abortion. In 2004, Congress 

passed and the president signed the Weldon Amendment, under which a physician 

or other health care professional, a hospital, a provider' sponsored organizatien, a 

health maintenance organization, a h"ealth insurance plan, or any ether kind of 

health care facility may refuse abertions, counseling, or referrals, even in cases of 

rape, incest, or medical emergency. 

Unconstitutional: By failing to offer an equivalent protection for service providers 

and patients, the religious exemption unconstitutionally restricts the ability of 

women to obtain services and medical personnel to provide services. It is important 
188 


75050.166

PHO- F,\ITll • PW)-F 1\MIL ~ • PHO-CIl01CC: 

to note that many religions support a woman's right to access reproductive health 

care, including abortion and contraception, as a matter of free exercise of conscience 

protected under the law. Thus, this religious exemption infringes the rights of 

individuals to act according to the dictates of their faith. 

We appreciate the subcommittee's time and consideration of our statement. 

Reverend Dr. Carlton W. Veazey 

President and CEO, Religious Coalition for Reproductive Choice 
189 


75050.167

General Board of Church and SocIeIy of 1he United MethodIst Church 

100 Maryland Avenue, N.E. , Washington, D.C. 20002 • (2021 488-5600 Fox: t202l488~5619 • Email: gbcs@Umc~gbcs,org. Webstte: www,umc.gbc5,org 

November 1, 2011 

TO: Members of the Health Sub-Committee, Energy and Commerce 

FROM: General Board of Church & Society of The United Methodist Church 

I am writing to strongly support the inclusion of family planning information and services 

into the Patient Protection and Affordable Health Care Act and make such services 

accessible at health care institutions such as hospitals and clinics. We support the 

recommendations from the Institute of Medicine (10M) regarding coverage of women's 

preventive health services and urge you to adopt Its recommendations. 

The United Methodist Church, a 12 million member Christian denomination, historically 

affirms that health care Is a basic human right and has worked diligently to ensure all men, 

women and children have access to needed services. This includes women and men 

seeking contraceptive information and services in order for them to decide whether or not 

to have children and/orfor timing and spacing of children. We know that family planning 

saves lives and also reduces the need for abortion. Voluntary family planning and 

contraception is essential In reducing unintended pregnancies, to helping women stay 

healthy, and bear healthy children. 

We affirm the principle of responsible parenthood, and support the right for men and 

women to have the ability to choose when, or if, to have children. Each couple has the right 

and the duty to prayerfully and responsibly control conception according to their 

circumstances. Ensuring that affordab~ options are available under insurance plans, as the 

10M suggests, would go a long way til ~elping individuals meet these obligations. 

Thank you for your attention to this critical issue. 

Sincerely, 

James E. Winkler 

General Secretary 
190 

Mr. PALLONE. Thank you. 

I am going to start with Mr. O’Brien. Your testimony discusses 

use of contraceptive services among both Catholic and non-Catholic 

women. Is it your understanding that surveys and studies have 

shown virtually all Catholic women have used contraceptive services at some point in their lifetimes? 

Mr. O’BRIEN. Yes, Congressman, that is correct. 

Mr. PALLONE. Thank you. Is it true that the use of contraceptive 

services among Catholic women mirrors that of non-Catholics? 

Mr. O’BRIEN. It is. 

Mr. PALLONE. And I am going to go to Dr. Hathaway. I saw a 

recent poll of registered voters about their views on contraceptive 

services. I want to ask you a few questions about public support 

for contraception. Do the vast majority of Americans support access 

to contraceptive services? 

Mr. HATHAWAY. Yes. 

Mr. PALLONE. And is this same view also held by people who are 

opposed to abortion? 

Mr. HATHAWAY. Yes, indeed. 

Mr. PALLONE. And back to Mr. O’Brien, if you would chime in. 

Does research indicate that the majority of Catholics support access to contraceptive services? 

Mr. O’BRIEN. Yes, during the health insurance reform debate, 

Catholics were surveyed, and 6 in 10 Catholics believe that contraception should be covered as part of health insurance. 

Mr. PALLONE. Thank you. For both gentlemen, your answers underscore an important point, and that is that improved access to 

contraceptive services is supported by the majority of Americans, 

and I certainly agree with some of the comments made by my colleagues and the witnesses about ensuring that individual health 

providers not be compelled to act against their conscience, but the 

subject of today’s hearing is regulations that address what plans 

are required to do. Given what we have heard today, I think we 

should support coverage for contraceptive services and make these 

services available to the millions of women who would benefit from 

it. 

Now, I want to go to Dr. Hathaway again. In your testimony, you 

discuss the importance of making sure that women have access to 

contraceptive services and information that will help them better 

plan and space their pregnancies. Can you briefly describe the benefits of using contraceptive services? 

Mr. HATHAWAY. Briefly would be difficult. There are multiple, 

multiple benefits towards contraception. A woman’s ability to maintain and get herself healthy before pregnancy is incredibly important—taking folate to reduce anomalies, getting her medical conditions under control. Many women have multiple medical conditions 

that are out of control before they get pregnant. 

Mr. PALLONE. What about in terms of babies’ health? 

Mr. HATHAWAY. Also. Birth spacing is incredibly important. We 

know from research that birth spacing, the shorter the interval, the 

greater likelihood of low weight births as well as preterm births, 

an incredible burden to both the family as well as society and the 

health industry. 

191 

Mr. PALLONE. Well, you know there are over 60 million women 

of reproductive age in the country but there are many women who 

do not use contraception regularly or at all. Could you elaborate on 

the extent to which cost is a barrier to the use of contraceptive 

services? 

Mr. HATHAWAY. It is an incredible barrier. Many women have to 

jump hoops to get contraceptives. If they have some insurance, perhaps it doesn’t cover all of their contraceptive methods. And as I 

pointed out in my testimony, the longer-acting methods are the 

most cost-effective and yet the most cost-prohibitive up front and 

those are the methods that we ought to be turning towards to provide better contraception in our country. 

Mr. PALLONE. And what about when you have insurance coverage for contraception? I mean does that impact the ability of 

women to access those health services? 

Mr. HATHAWAY. In many cases, yes. Even insurance there are restrictions regarding copays, as well as additional fees for these, as 

I said, most effective methods. 

Mr. PALLONE. And based on your clinical experience, do you believe that elimination of out-of-pocket costs for birth control pills 

and other forms of contraception would increase their use? 

Mr. HATHAWAY. Most definitely. Most definitely. 

Mr. PALLONE. All right. I just want to thank you, Dr. Hathaway. 

I mean it is clear from your testimony and responses that there are 

compelling policy reasons why we should promote access to contraception and also limit cost-sharing associated with those services. 

Thank you and thank you to Mr. O’Brien. 

I yield back, Mr. Chairman. 

Mr. PITTS. The Chair thanks the gentleman and recognizes the 

vice chair of the subcommittee, Dr. Burgess, for 5 minutes. 

Mr. BURGESS. Thank you, Mr. Chairman. 

Dr. Hathaway, along the lines as Mr. Pallone was just exploring, 

they said that there are valid policy reasons to consider providing 

contraception, but you also allude to the fact that in your world 

cost is a consideration. Is that correct? 

Mr. HATHAWAY. I am not sure I understand the question. Cost 

as a consideration for an individual patient? 

Mr. BURGESS. You talk about the individual in your clinic who 

wanted a long-term method of contraception but it nearly exhausted your safety net dollars—— 

Mr. HATHAWAY. Right. 

Mr. BURGESS [continuing]. And cost is an issue whether we like 

it or not. Money has got to come from somewhere, has it not? 

Mr. HATHAWAY. Indeed. And yet if you look at a lot of the research, including Guttmacher Institute’s research on cost savings 

for contraception overwhelmingly—— 

Mr. BURGESS. Yes, let us hold that. We will get to that in a 

minute because I am not quite sure we have delivered on the promise of the cost savings. And of course, we are Members of the House 

of Representatives. We live under the rule of the Congressional 

Budget Office and as all of us on both sides of the dais know, we 

are not allowed to score savings. We can only talk about cost. That 

is an important point; I do want to get to it. 

192 

But here is my beef with this thing. I mean it came to us as an 

interim final rule. There was obviously a rush. There were some 

calendar considerations. We have got to get it done within some 

certain time constraints, but it didn’t really allow for the proper 

input and transparency of the normal Federal agency process. The 

Affordable Care Act is a lot of pages of very densely worded instructions to Federal agencies, and whether you agree with or not, 

going through the process at the Federal agency, there is a reason 

that it does that because it allows the public to comment. Before 

the rule is put forward, it allows for the people to weigh in on it. 

But in an interim final rule, that is kind of a different world because although it sounds like, well, it is only interim. Either you 

come back and do—you really can’t. I mean this thing comes out 

of the agency with the force of law and you see right now in this 

environment how difficult it is for Congress, the House and Senate 

to get together and pass any law that the President will sign, but 

this thing can come out with the force of law in a relatively condensed period of time with maybe public input but maybe it ignores 

public input. 

Now, I worked my residency with Parkland Hospitals—a long 

time ago I grant you—but we provided a lot of healthcare to women 

who were very, very poor and I never wrote a prescription for an 

oral contraceptive except Ortho-Novum 1/50 for 4 years’ time because that was the formulary that Parkland Hospital used. In 

order to provide the services for the vast numbers of people that 

they had to serve, they got a deal with the contraceptive manufacturer, and that was the birth control pill. It was a learning experience for me to be out in private practice and see all of the choices 

that were out there. 

But those choices come with a cost, don’t they? 

Mr. HATHAWAY. Yes. Yes, indeed. 

Mr. BURGESS. Can you give us an idea of what kind of the range 

of cost? Let us just stick with oral contraceptives for right now. I 

know you are interested in long-term contraception, but just for 

oral contraceptives right now, there is a pretty wide variation of 

cost, is there not? 

Mr. HATHAWAY. Yes, the brand name contraceptives probably run in the neighborhood of upwards of $50 per month. 

The generics have probably in the neighborhood of 30 or somewhere in that neighborhood. 

Mr. BURGESS. Well, through the miracle of the iPad and Leslie’s 

List, I can tell you that there is a cost differential of about $20 a 

month for a generic Ortho-Novum 1/35, Necon—funny name for 

that pill—and there is another one called Seasonique that is, according to research done by my staff, $1,364 a year, so about $110 

a month. So that is a pretty wide discrepancy, isn’t it? 

Mr. HATHAWAY. Indeed, and yet if we were able to help a woman 

with a longer-acting method for that year, you would save—— 

Mr. BURGESS. Let us not go there just yet because—— 

Mr. HATHAWAY [continuing]. A lot of dollars right there—— 

Mr. BURGESS [continuing]. The Institute of Medicine and the interim final rule says without regard to cost, we have to provide all 

methods now across the board. And this is the problem with having 

an interim final rule. I didn’t get to go to the Federal agency and 

193 

say you know what? This is a pretty wide cost discrepancy here. 

You can provide 5 women with the same type of oral contraceptive 

protection that one woman gets for Seasonique. And there are reasons that patients want to take that. I get that. Perhaps it should 

be available with a copay or paying a little extra for that premium 

contraceptive coverage. This would be something that I think 

would have been useful to the Federal agency. But unfortunately, 

we didn’t get to have input on that because it was promulgated as 

an interim final rule. 

Mr. Chairman, you have been generous with my time. If we have 

time for a second round, I do want to talk about the cost-benefit 

stuff. 

Mr. PITTS. The Chair thanks the gentleman and now recognizes 

the ranking member emeritus, Mr. Dingell, for 5 minutes. 

Mr. DINGELL. And the questions here I direct at Mr. O’Brien, and 

I hope that the answers will be by yes or no. 

The interim rule issued by HHS on August 3, 2011, regarding 

coverage of preventive services under ACA included language that 

exempted certain religious employers from covering contraceptive 

services without cost sharing. A religious employer is defined by 

one that has religious values as the purpose of the organization, 

primarily employs and serves persons who share the religious tenets of the organization, and is a nonprofit organization. Isn’t it 

true that this definition of religious employer is set forth by HRSA 

and the interim rule is not wholly a new definition of a religious 

employer? Yes or no? 

Mr. O’BRIEN. Yes, Congressman. 

Mr. DINGELL. Now, isn’t it also true that the 20 States that exempt certain religious employers from having to cover contraceptives that they allow them to be exempt from providing contraceptive services, and at least half of these States use a definition of 

a religious employer similar to that in the definition used by HRSA 

in the interim final rule? Yes or no? 

Mr. O’BRIEN. Yes. 

Mr. DINGELL. Isn’t it also true that 2 State Supreme Courts in 

California and New York upheld a definition of religious employer 

similar to the definition of a religious employer in the legislation 

as constitutional? Yes or no? 

Mr. O’BRIEN. Yes. 

Mr. DINGELL. So I think everybody in this room should agree 

that individuals have the right to decline to provide certain medical 

treatment if they conscientiously object to their religious beliefs. 

That is not interfered with under the regulations, is it? 

Mr. O’BRIEN. Yes. 

Mr. DINGELL. The answer is it is not interfered with. 

Mr. O’BRIEN. No. 

Mr. DINGELL. Thank you. And under current healthcare professionals who conscientiously object to providing certain medical 

services or procedures due to their religious beliefs are allowed to 

again not to provide those services, is that right? 

Mr. O’BRIEN. That is right. 

Mr. DINGELL. But isn’t it true that the broadening definition of 

a religious employer would allow an employer, say a hospital or 

194 

health insurer, to deny coverage for contraceptives or other preventive services based on their religious beliefs? Yes or no? 

Mr. O’BRIEN. Yes. 

Mr. DINGELL. Now, isn’t it also true that the broadening of the 

religious exemption would limit access to contraceptives to nearly 

1 million people and their dependents who work at religious hospitals and nearly 2 million students and workers at universities 

with a religious affiliation? Yes or no? 

Mr. O’BRIEN. Yes. 

Mr. DINGELL. One of the ways the Affordable Care Act works to 

address the need of lowering costs in our health system is by putting renewed emphasis on prevention and wellness programs to 

help American families to live healthier lives and reduce the need 

for more costly treatments later in life. The Affordable Care Act 

does this by eliminating copays and cost-sharing for preventive 

service. Is that correct? 

Mr. O’BRIEN. Yes. Yes. 

Mr. DINGELL. And he doesn’t have a nod button so you have got 

to answer yes or no. HHS has asked the Institute of Medicine, an 

independent organization who is convening a panel of experts to 

make recommendations about what preventive services for women 

would qualify for no cost-sharing. The Institute of Medicine identified 8 preventive services as being necessary to improving women’s 

health and well being, including all FDA-approved contraceptive 

methods and patient education counseling, amongst other benefits. 

HHS adopted these recommendations in full, is that correct? 

Mr. O’BRIEN. Yes. 

Mr. DINGELL. Now, wouldn’t you agree that—by the way, is that 

yes or no? 

Mr. O’BRIEN. Yes. 

Mr. DINGELL. Wouldn’t you agree that broadening the religious 

exemption would limit or prevent access to critical preventive services that are intended to improve the health and well being of 

women? Yes or no? 

Mr. O’BRIEN. Yes, absolutely. 

Mr. DINGELL. Now, wouldn’t you also agree that the limiting or 

preventing of access to critical preventive services is counter to the 

goal of the Affordable Care Act to help make prevention affordable 

and accessible to all Americans? Yes or no? 

Mr. O’BRIEN. Yes, that is true. 

Mr. DINGELL. Now, I note in the testimony that I have heard this 

morning, I have heard no complaints that what we have done here 

is to expand the right to abortion or to change the basic language 

of the legislation in the Affordable Care Act on that point. Am I 

correct in that understanding? 

Mr. O’BRIEN. You are correct. 

Mr. DINGELL. Thank you. 

Mr. Chairman, I note I yield back 2 seconds. 

Mr. PITTS. The Chair thanks the gentleman and recognizes the 

gentleman, Mr. Shimkus, for 5 minutes for questions. 

Mr. SHIMKUS. Thank you, Mr. Chairman. 

About a year ago, we had some theologians here on climate 

change and I quoted some scripture, got myself in trouble, made 

myself a name. But I mean if we are going to go down the right 

195 

and talk about safe—and especially for Christians, God’s word is 

the final arbiter of truth. Jeremiah 1:5, ‘‘before I formed you in the 

womb, I knew you.’’ Psalm 71:6, ‘‘you brought me forth from my 

mother’s womb.’’ Those are just a few of numerous scripture references on the pro-life debate for confessional Christians, and this 

is where I really appreciate my fellow Christians in the Catholic 

Church. I am Lutheran by faith tradition, so hold a really distinct 

close bond. But there is a strong position on the right to life. 

And what we have done in the national healthcare law has attacked the very providers of healthcare and social services for the 

poor in this country, which are church, faith-based institutions. 

And Mr. O’Brien, what we are doing is we are depriving them of 

their choice. That is what we are doing. And Illinois as aside has 

just done this in the adoption realm where now the Catholic 

Church is suing the State of Illinois because of now the Illinois legislation that grants same-sex couples under the State law all the 

rights of married couples. So when a faith-based institution like a 

Christian denomination—and in this case, Catholic charity does 20 

percent of all adoptions in the State of Illinois—you take the other 

faith-based, I think it is up to 33 percent, they now have to make 

a moral decision of whether they are going to continue adoption 

services or comply with their faith-based teachings. So that is going 

on in Illinois. That is exactly what is going on here with the 

healthcare law. So I will follow up with these questions. 

To Ms. Belford, Mr. Cox, Mr. Stevens, should individuals or institutions lose their rights to follow their moral and religious beliefs 

once they decide to enter a healthcare profession? Ms. Belford? 

Ms. BELFORD. No, they should not lose that right. 

Mr. SHIMKUS. Mr. Cox? 

Mr. COX. Absolutely not. 

Mr. SHIMKUS. Mr. Stevens? 

Mr. STEVENS. We shouldn’t be asking our medical schools to ethically neuter healthcare professionals based upon only what the 

State decides is right. 

Mr. SHIMKUS. To the same three, should we compel providers to 

act in violation of their conscience? 

Mr. COX. Absolutely not. It is a violation of the First Amendment 

to the Constitution. 

Mr. SHIMKUS. OK. That was Mr. Cox. Ms. Belford? 

Ms. BELFORD. No. No, we shouldn’t. That is a right enshrined in 

our history, in our Constitution, in our laws the right not to violate 

our firmly held, sincerely held religious beliefs. 

Mr. SHIMKUS. And Dr. Stevens? 

Mr. STEVENS. I agree. We cannot ask people to take professional 

license and lay aside their personal morality. 

Mr. SHIMKUS. Another question. When a provider makes a conscious objection, is there anything that prevents a patient from 

going to another willing healthcare provider for service? Dr. Stevens? 

Mr. STEVENS. Absolutely not. 

Mr. SHIMKUS. Ms. Belford? 

Ms. BELFORD. No. 

Mr. SHIMKUS. Mr. Cox? 

Mr. COX. No. 

196 

Mr. SHIMKUS. Ms. Belford, in order to qualify for the religious 

employer exemption to HHS’s interim final rule on preventive services, an employer would have to meet all 4 criteria delineated in 

the rule, including that it primarily serves persons who share its 

religious tenets. What would be the impact on sick and needy people in the Archdiocese in Washington if the Archdiocese organizations had to limit the provision of their services in such a manner? 

Ms. BELFORD. Well, Congressman, let me just say right at the 

outset we have served, we are serving, and we will continue to 

serve the people who need help. We would hope that our government would recognize the value of those services and the importance of those services and the right that has been granted to us 

under the Constitution and the laws of this country to be able to 

provide those services without violating our religious beliefs. But 

we will serve. We have been here for hundreds of years in this 

country serving. One of our oldest agencies in the Archdiocese is 

St. Ann’s Infant and Maternity Home. It was chartered by President Lincoln and it is still here serving. We will be here. 

Mr. SHIMKUS. And let me personally thank you for your service. 

And I yield back. 

Mr. PITTS. The Chair thanks the gentleman and recognizes the 

gentlelady from Illinois, Ms. Schakowsky, for 5 minutes for questions. 

Ms. SCHAKOWSKY. I just wanted to note the number of religious 

organizations that Mr. Pallone inserted testimony into the record, 

and I note that one of them was the National Council of Jewish 

Women, which I am a proud member of. 

So let me understand from Dr. Stevens and Ms. Belford and Mr. 

Cox. We are not talking about—as my colleague from Illinois was 

saying—individual healthcare providers. You are talking about 

healthcare systems, am I right? Institutions and networks of institutions that would be exempted from having to provide contraception, is that true, Dr. Stevens? 

Mr. STEVENS. Yes. 

Ms. SCHAKOWSKY. Ms. Belford? 

Ms. BELFORD. In the case of the Archdiocese of Washington, we 

conduct our ministries through separate organizations, but in addition to what we as church do—— 

Ms. SCHAKOWSKY. In your testimony are you asking to expand it? 

Ms. BELFORD. Excuse me? 

Ms. SCHAKOWSKY. In your testimony are you saying that the narrow exemption should be broadened if not dropped and to include 

systems as well and broader—— 

Ms. BELFORD. It should include religious organizations that operate in accordance with their teachings and beliefs, yes. 

Ms. SCHAKOWSKY. And Mr. Cox, hospital systems as well and 

hospitals? 

Mr. COX. The definition puts HHS in the position of trolling 

through the religious beliefs and practices of religious organizations—— 

Ms. SCHAKOWSKY. So that would include institutions? 

Mr. COX [continuing]. And determining, Congresswoman, which 

ones it agrees with and which ones it doesn’t agree with, and if it 

197 

doesn’t agree with them, then it uses the force of law to compel 

that organization to follow its beliefs. 

Ms. SCHAKOWSKY. And let me ask the three of you, then, if this 

regulation were not changed, would you drop your health insurance 

coverage? Dr. Stevens? 

Mr. STEVENS. I think it would be something we would have to 

consider because it is a problem when you are dispensing an abortifacient and paying for it. It is called moral complicity. 

Ms. SCHAKOWSKY. OK. Ms. Belford? 

Ms. BELFORD. It is unthinkable that we would drop our health 

insurance coverage but we would not provide coverage for contraception and sterilization as required by this law. 

Ms. SCHAKOWSKY. Mr. Cox? 

Mr. COX. We will have to challenge it in court if it isn’t dropped. 

Ms. SCHAKOWSKY. OK. So I just want to make sure that the word 

goes forth into the country that this is about depriving women of 

contraception by large hospital systems, smaller organizations, and 

potentially even all healthcare coverage for the employees of those 

organizations despite the fact, as it was pointed out, that all but 

perhaps 5 percent of Catholic women also use contraception, that 

virtually all Americans in recent surveys—women—use contraception. 

Mr. O’Brien, this issue of conscience is so important because I 

perceive that as an individual right of conscience, can you elaborate 

on the difference between individuals and institutions and the right 

of conscience that you mentioned before? 

Mr. O’BRIEN. You are absolutely correct, Congresswoman. 

I think one of the things that is interesting about this is the 

Catholic Church is not actually asking for an exemption. The 

Catholic Church is all of the people in the Church, which includes 

the 98 percent of Catholic women who use a contraceptive. The 

consciences of these women, of the people in the Church, are absolutely essential. The Catholic hierarchy, the United States Conference of Catholic Bishops, represents about 350 bishops. It is the 

bishops and the people involved in the Catholic healthcare industry 

who are asking for these exemptions. The conscience of an individual within Catholicism and St. Thomas Aquinas told us very 

clearly that it is a mortal sin not to follow your conscience, your 

individual conscience, even if you have to go against church teaching. I think that Catholics do that every day on an individual basis. 

The idea that an institution or a health insurance plan in some 

way has a conscience and there is no tradition of that and the reality is that conscience is applied to real people and individuals. 

Ms. SCHAKOWSKY. And since we are getting into very personal 

and private matters dealing with women, I am just curious from 

Dr. Stevens, Ms. Belford, and Mr. Cox, do you have any problem 

with the insurance companies providing prescription drugs for erectile dysfunction, Cialis or Viagra? Just curious. 

Mr. STEVENS. I don’t have any problem at all. I also don’t have 

any trouble with contraceptives, most of them, but that doesn’t 

mean I am going to prescribe all of them or that my Catholic brothers and sisters should not have the right to decide they are not 

going to pay for them. 

Mr. COX. Our plans don’t cover those services. 

198 

Ms. BELFORD. I think as I indicated, Congresswoman, in my testimony, our plan does not cover contraceptive coverage, sterilization, and the drugs that are mandated here. 

And if I would just add I recognize that the teachings of the 

Catholic Church on procreation and life may not be the majority 

view and may not be popular, but I also understand from all the 

testimony that I have just heard this morning that contraception 

is widely available and universally used. So the issue here is not 

whether or not women are using it or have access to it. The issue 

for me and why I came here today is because the Catholic Church 

has a teaching about procreation and life and we are talking about 

whether us as an employer, the Archdiocese of Washington, would 

be required to provide coverage for something that we teach is morally wrong. I know not everyone—— 

Ms. SCHAKOWSKY. And I hope you would inform all of your 

women employees of that policy. Thank you. 

Mr. PITTS. The Chair thanks the gentlelady and recognizes the 

gentleman from Pennsylvania, Dr. Murphy, for 5 minutes. 

Mr. MURPHY. Thank you, Mr. Chairman. 

Dr. Hathaway, in your testimony you spoke of your many uninsured patients and the cost they face to excess contraceptives, just 

to be clear, because this interim final rule is directed at those providing insurance, nothing in this rule would actually change your 

uninsured patients’ ability to access contraceptives, is that correct? 

Mr. HATHAWAY. I am not a legal scholar and I can’t truly point 

to that, but I do know—— 

Mr. MURPHY. They would still have access to that? 

Mr. HATHAWAY. Access and copays and coverage for some of the 

most effective methods are prohibitive for many, many, many insured and uninsured women in our country. It is—— 

Mr. MURPHY. I am asking under this interim rule, would nothing 

that would change the uninsured patient’s ability to access contraceptives in this? 

Mr. HATHAWAY. I think it would. 

Mr. MURPHY. Excuse me. Now, there are many business owners 

in my district guided by their faith who are struggling with whether or not they can continue to provide health insurance to their employees in light of this new rule. Do you honestly think that thousands of individuals and families in my district who could lose their 

health insurance altogether are really better off as a result of this 

rule? 

Mr. HATHAWAY. I feel that this rule, in the Institute of Medicine’s evidence-based looking into this issue is pretty clear that removing copays, removing cost barriers will have a dramatic positive 

impact on reducing unintended—— 

Mr. MURPHY. And the issue before us here is also one of people’s 

ability to practice their faith, that the government is not saying 

that people cannot access these at all, but the question really before us is whether or not government has the right to force faithbased hospitals or clinics or providers or employers certain services 

that violate their church teachings. And the question is whether 

the Secretary of HHS can act unilaterally to force employers, medical providers, hospitals, clinics, and others to act in ways that violate their faith and conscience. 

199 

And to that, Mr. O’Brien, I strongly disagree with your analysis 

of the Catholic Church. Conscience is at the core of Catholic teaching, you said, but slavery was not left to personal decisions and 

conscience, thank goodness. 

Conscience, according to Father Anthony Fisher, tells us that ‘‘it 

is the inner core of human beings whereby, compelled to seek the 

truth, they recognize there is an objective standard of moral conduct and they make a practical judgment of what is to be done here 

and now in applying those standards.’’ That and I think, too, it 

teaches us the moral character of actions is determined by objective 

criteria not merely by the sincerity of intentions or the goodness of 

motives. And the church of the modern world and all people are 

called to form their conscience accordingly and to fit with it as opposed to rewrite their image of the church and of the Lord’s teachings. It is not—I repeat—it is not our duty as Catholics to tell God 

what he should do or the image that he should adhere to or what 

he should think, but it is up to us to shape our conscience to conform with the teachings he has given us. 

When Moses came down with the 10 Commandments, he didn’t 

put it up for a vote or ask for a referendum or say to people, so 

what do you think, folks? Our life is spent in continuous struggle 

to learn that which is good and conscience is not merely to declare 

it in terms of humanism and then form some image of God based 

upon some desires. Conscience, sir, is not convenience. 

Father Fisher goes on to say that ‘‘deep within their conscience, 

human persons discover a law which they have not themselves 

made but which they must obey. Conscience goes astray through 

ignorance and the key here is to shape our conscience to conform 

to the laws of God, not to practicality or solecism.’’ ‘‘Conscience,’’ he 

goes on to say, ‘‘is formed through prayer, attention to the sacred, 

and adhering to certain teachings of the church and the authority 

of Christ teachings in the church.’’ Conscience is not that which described by Shakespeare when he says in Hamlet ‘‘nothing is either 

good or bad but thinking makes it so.’’ 

So asking a group in a survey whether or not they have ever 

acted or thought of acting a certain way that runs counter to the 

church’s teachings is no more a moral code than asking people if 

they ever drove over the speed limit as a foundation for eliminating 

all traffic laws. 

With that, I end with a quote from John Adams, which he said 

in 1776 when he was writing our Declaration of Independence of 

the United States. He said, ‘‘it is the duty of all men in society, 

publicly and at stated seasons, to worship the Supreme Being, the 

Creator and Preserver of the universe, and no subject shall be hurt, 

molested, or restrained in his person, liberty, or estate for worshipping God in the manner most agreeable to the dictates of his own 

conscience or for his religious profession, or sentiments provided he 

doth not disturb the public peace or obstruct others in their religious worship.’’ The foundation of our Nation is not to impose laws 

which restrict a person’s ability to practice their faith, sir. 

With that, I yield back. 

Mr. PITTS. The Chair thanks the gentleman and recognizes the 

gentlelady from California, Ms. Capps, for 5 minutes. 

Mrs. CAPPS. Thank you, Mr. Chairman. 

200 

One thing that does trouble me in today’s testimony is some confusion about what the preventive service rule applies to and what 

it doesn’t. I would like to set the record straight as I understand 

it. The rule we are discussing today is whether or not an employer—as in a hospital or university system—can ban the coverage of a medical service but it would not mandate that any individual prescriber’s control or that any woman or man take birth 

control. Period. Today’s hearing is yet another example of how out 

of touch the majority side is with the American people. My constituents tell me that we should be spending our time here considering jobs and the economy, not blocking women’s access to contraceptive services. But instead here we are again poised to attack another important piece of the healthcare law to rile up an extremist 

constituency at women’s expense. 

The Institute of Medicine report illustrates the strong evidence 

and sound science that proper birth spacing and planning of pregnancies does improve the health of a woman and her future children. The HHS rule then translates the science into provisions to 

give women options to choose if, when, and how to space their pregnancies, something they should be discussing with their medical 

provider, not with their boss. As we have heard, especially in these 

tough economic times, women are sometimes forced to choose between paying for their birth control prescription or paying for other 

necessities. These economic concerns are the threat to public health 

we should be discussing, not whether or not your boss’ conscience 

is more important than your own. 

Now, Mr. Cox, I want to praise the good work of your institutions 

in California because many of them are serving my constituents in 

my congressional district—— 

Mr. COX. Thank you. 

Mrs. CAPPS [continuing]. On the central coast. In your testimony 

you say that you represent Catholic healthcare organizations in 

California, including 54 hospitals. Is that correct? 

Mr. COX. That is correct. 

Mrs. CAPPS. So to be clear, you are not speaking for or representing the views of all Catholic hospitals or nursing homes in 

the United States? 

Mr. COX. No, but I would believe that my views would be consistent—— 

Mrs. CAPPS. Right, but you do not represent any other than the 

ones in California. 

Mr. COX. That is correct. 

Mrs. CAPPS. As I understand it, California has a requirement for 

coverage of contraception that is very much like the one that HHS 

has now proposed, and that includes the religious exemption that 

you are now saying is too narrow. I also understand that this coverage requirement has been reviewed by the California Supreme 

Court and found not to be religious discrimination and that the 

United States Supreme Court refused to review that decision. So 

my question to you, I assume that your hospitals in their role as 

employers comply with the California law and do provide insurance 

coverage for your employees for contraceptive services. Is that correct? 

201 

Mr. COX. Most of our members have moved or are moving towards self-insurance under ERISA, which would be denied to us by 

the HHS rule. 

Mrs. CAPPS. But they do now? 

Mr. COX. Pardon? 

Mrs. CAPPS. They do now? 

Mr. COX. Yes, they either have or are moving towards—— 

Mrs. CAPPS. But they do now use it? 

Mr. COX [continuing]. Self-insured ERISA plans in order to get 

out from under—— 

Mrs. CAPPS. But they do provide insurance coverage now as required? 

Mr. COX. Yes, of course, we do. 

Mrs. CAPPS. OK. I wondered if you would tell us all have any of 

your hospitals closed as the result of this requirement? Yes or no, 

please. 

Mr. COX. We have other options. 

Mrs. CAPPS. So they have not. 

Mr. COX. They have not. 

Mrs. CAPPS. Have any of your hospitals dropped insurance coverage for its employees as a result of this requirement? 

Mr. COX. No. 

Mrs. CAPPS. Have any of the Catholic bishops severed ties with 

your hospitals over this requirement? 

Mr. COX. No. 

Mrs. CAPPS. Thank you. 

Now, I would like to address Mr. Hathaway. I only have a few 

seconds left, but if there was an expansion of refusal provisions for 

employers, in some estimates that would affect over a million employees and their families. Where would these women go for their 

care? 

Mr. HATHAWAY. My guess is they would end up in a safety net 

system somehow and struggle to make ends meet. 

Mrs. CAPPS. Like a Title X? 

Mr. HATHAWAY. Right. 

Mrs. CAPPS. And a clinic like the one you describe with certain 

patients that you serve gets Title X funding to provide these services for women who can afford them? 

Mr. HATHAWAY. Correct. 

Mrs. CAPPS. Thank you. 

Mr. HATHAWAY. I think it should be pointed out that the areas 

of the United States where there is less access to healthcare are 

also the areas where there is higher epidemic rates of unintended 

pregnancies, and those are the population—if I am here representing anyone, I am representing the thousands of women that 

I have seen daily that just don’t have access to good healthcare. 

And I truly hope we can move forward on this Preventive Care Act. 

Mrs. CAPPS. That is exactly what I wanted to allow you the opportunity to say because as a former public health nurse in a 

school system I see those faces before me every single day as I 

serve here in Congress. Thank you very much. 

Mr. HATHAWAY. Thank you. 

Mrs. CAPPS. I yield back. 

202 

Mr. PITTS. The Chair thanks the gentlelady and recognizes the 

gentlelady from Tennessee, Ms. Blackburn, for 5 minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman, and thank the 

panel for their time. 

Dr. Stevens, I want to talk with you for a couple of minutes, but 

before I do, the gentlelady from California mentioned that we 

should be talking about jobs. I would like to say that straightening 

out this Obamacare bill is a way for us—to repeal it, to replace it 

is a way to deal with jobs because we heard from CBO that passage of this bill would cost us about 800,000 jobs. So I appreciate 

that we are looking at the dynamic that this has. 

But Dr. Stevens, I want to talk with you. Since you are from 

Tennessee and you are familiar with the impact that TennCare 

program had on Tennesseans, I want to look at this access-to-care 

issue because as I have told my colleagues here in this committee 

many times over the past few years that what we saw happen in 

Tennessee was individuals had access to the queue but they didn’t 

have access to the care. And there is an enormous difference that 

is there. On the contraceptive mandate, I want to be certain that 

I am quoting you right. And your quote was, ‘‘it violates the religion and free speech clauses of the First Amendment of the Constitution by coercing faith-based healthcare ministries to not only 

violate the very faith-based tenets that have motivated patient care 

for millennia but also to pay for that violation. Such conscience-violating mandates will ultimately reduce patients’ access to faithbased medical care, especially depriving the poor and medically underserved populations of such care.’’ 

Mr. STEVENS. That is very much the case. You know, the intention may be to expand coverage, but actually what this is going to 

do I believe if it is carried forward will reduce care as faith-based 

professionals, because they are forced into a situation, begin not 

providing those services or not providing insurance for the staff 

that are working with them. So that is a great concern because the 

bottom line is we want to take care of the poor, we want to provide 

good services, but we cannot violate our conscience. 

Mrs. BLACKBURN. OK. And you also noted a national survey at 

FreedomToCare.org of over 2,100 faith-based physicians revealed 

that 9 of 10 are prepared to leave the practice of medicine if pressured to compromise their ethical and moral commitments. So do 

you believe that this particular mandate could contribute to more 

faith-based providers leaving the medical profession and thereby 

reducing patients’ access to medical care? And are you concerned 

that faith-based providers might leave certain or particular areas 

of medical care in especially large numbers? 

Mr. STEVENS. I know that is happening. We work on 222 medical 

and dental campuses across the country where we have student 

chapters and I remember meeting with 5 students down at the 

University of Texas, 5 girls, and I said what are you guys interested in? And they all said OB/GYN. How many of you are going 

into it? Only one. Why not? Because of right-of-conscience issues, 

because of pressures in residency, coercion to participate in abortions or do things that violate their conscience. So we are already 

beginning to change the face of healthcare. The sad thing, Congresswoman, is that I think that is what some people want. 

203 

I was debating a Planned Parenthood lawyer on National Public 

Radio on right of conscience; he said you have no business being 

in healthcare if you are not willing to provide legal services. And 

I think there are some that would love to see faith-based people out 

of the whole healthcare equation. 

Mrs. BLACKBURN. OK. Let me go to Mr. Cox and Dr. Stevens and 

Ms. Belford with this one. And Dr. Stevens, starting with you and 

working across. Let me just ask you—this is a yes or no—and then 

you can explain if you would choose. We only have a minute and 

45 seconds left. Does this preventive services rule adequately protect freedom of conscience? 

Mr. STEVENS. Absolutely not. It is the most constrictive thing we 

have had in Federal law in history. 

Mrs. BLACKBURN. So the fears of the students would be realized 

under that? 

Mr. STEVENS. Absolutely. 

Mrs. BLACKBURN. OK. Ms. Belford? 

Ms. BELFORD. I agree. 

Mrs. BLACKBURN. OK. 

Mr. COX. Completely agree. 

Mrs. BLACKBURN. Thank you. Thank you very much. 

And with that, I will yield back my time so that we can move 

through the rest of the panel. 

Mr. PITTS. The Chair thanks the gentlelady, recognizes the gentleman, Mr. Towns, for 5 minutes for questions. 

Mr. TOWNS. Thank you very much, Mr. Chairman. Let me thank 

you and the ranking member for holding this hearing. 

The Supreme Court and lower courts throughout this land have 

repeatedly ruled that a law that is applied generally is enforceable 

even if some religious groups oppose the action or the inaction that 

it requires. Let me give you a few examples. The Quakers must pay 

taxes that support wars. Native Americans may not use traditional 

drugs. Mormon men may not have multiple wives. Some courts 

have ruled that the Muslim women must remove their veils for 

photo identification cards and et cetera, et cetera, going on and on 

and on. 

The question for the court is whether the government is pursuing 

a legitimate goal. Family planning is a legitimate goal. We have 

reams of data and medical consensus that family planning improves health outcomes for mother and child. We have shelves of 

studies that show that unintended pregnancies are likely to result 

in worse health and are much more likely to result in abortion. The 

government, of course, cannot require individuals to use family 

planning, it cannot require individuals to provide family planning, 

but it can require employers to pay for insurance that covers family 

planning, and it should. 

Let me go to you, I guess, Dr. O’Brien. I fully respect the rights 

of an individual provider to exercise his or her conscience. However, I believe that this right must be carefully balanced by the 

rights of patients’ access to safe, legal healthcare. We must be certain that any right of refusal provided is solely granted to an individual and not to an institution to ensure that we strike the right 

balance. 

204 

Dr. O’Brien, do you believe that the Affordable Care Act refusal 

clauses have the potential to compromise the health of women? 

Mr. O’BRIEN. I believe the Affordable Care Act is an absolutely 

marvelous initiative that would greatly improve the lives and the 

healthcare of women, men, and families. I think the difficulty really comes about when what we are hearing all the time is trying to 

bestow conscience rights on institutions. I fully agree with you that 

with regards to doctors, nurses, pharmacists, individuals have a 

right of conscience. They have a right to refuse to provide services. 

If they find themselves in that situation, obviously the onus is 

to ensure that somebody can access those services. Because in Catholicism—and also I believe within fair play in the United States 

of America—the idea that someone cannot access services, there is 

something wrong with that. I think there is a real difficulty that 

we didn’t hear a lot today from some members about the conscience 

rights of those individuals who would be denied service. What 

these refusal clauses are really intending to do would be to have 

the State sanction discrimination against individual workers just 

because they happen to work in an institution that is a Catholic 

institution. The idea that an employer can decide what services you 

do or do not get, I think there is something very wrong with that, 

something very un-American about it. 

Mr. TOWNS. Right. Thank you very much. I much admit that I 

agree. 

Dr. Hathaway, why do you as a medical professional support the 

ACA preventative coverage provision? As a doctor who specializes 

in women’s health, could you please explain why unintended pregnancies are considered by doctors a health condition? And I only 

have a few seconds left because I want to make a statement in reference to I know we keep using the word Obamacare. I am going 

to suggest for this committee, which is the Health Committee, refer 

to it as President Obamacare. Thank you. 

Mr. HATHAWAY. Yes. Thank you, Chairman. 

Mr. TOWNS. Thank you. 

Mr. HATHAWAY. After I had been practicing in a public health 

clinic for several years, I took some time to go to public health 

school and it was for the exact reason as we are speaking about 

today that I found many, many, many women, my patients, coming 

in with unplanned, unintended pregnancies. And I felt as though 

we need to be doing something about that. And when this recommendation came out from the Institute of Medicine, many of my 

colleagues throughout the country, OB/GYNs, family, nurse practitioners, midwives, family medicine doctors, pediatricians all to my 

knowledge are overwhelmingly supportive of this recommendation 

that preventive healthcare should include contraception care, family planning care, as well as the multitude, 7 or 8 other points that 

they recommend. Public health is an incredibly important issue for 

our country and preventive health is paramount. 

Mr. TOWNS. I yield back. 

Mr. PITTS. The Chair thanks the gentleman and recognizes the 

gentleman from Georgia, Dr. Gingrey, for 5 minutes. 

Mr. GINGREY. Mr. Chairman, thank you for yielding, and I thank 

our witnesses. I want them to know if they don’t already know that 

205 

prior to Congress I spent 26 years practicing obstetrics and gynecology in Marietta, Georgia, my hometown. 

I am going to address my first questions to Dr. Stevens, Ms. 

Belford, and Mr. Cox, and I will get each of you to quickly answer 

these questions. They are pretty straightforward yes or no. 

Are you aware that President Obama promised every American 

that they could ‘‘keep what they have if they liked it’’ when referring to health insurance? 

Mr. STEVENS. Yes. 

Ms. BELFORD. Yes. 

Mr. COX. Yes. 

Mr. GINGREY. And the second question for the same three, I referenced the Catholic hospitals in my opening statement. Does this 

interim rule in your opinion support President Obama’s promise 

that workers, including the 750,000 of the Catholic Hospital Association, could keep what they have if they like it? 

Mr. STEVENS. No. 

Ms. BELFORD. No. 

Mr. COX. No. 

Mr. GINGREY. Thank you. The next question I want to address 

to Mr. O’Brien. Mr. O’Brien, you stated that you believe in choice 

and Mr. Waxman referenced in his statement the need for employees to have the choice to access services. I am glad to hear that because I basically agree with the two of you. I also believe that 

choice is a two-way street, both to do and not to do. 

In 2014, according to supporters of the new health law, President 

Obamacare, every single person will have numerous choices in the 

health plans through these exchanges. So instead of forcing every 

person to pay for a service they may have a moral conscience objection to, Mr. O’Brien, don’t you agree it would be better to allow 

them to choose whether they want these services and if they want 

to pay for them? 

Mr. O’BRIEN. I think that there is a lot of people in the United 

States of America who have problems with taxes, problems paying 

taxes, the amount of taxes they pay. But we don’t get to pick and 

choose what we pay and what we don’t pay for. Some people disagree with the wars, some people disagree with the incarceration 

system in the United States. Other people feel that as regards to 

welfare that they don’t feel like paying for it. But we do. As a society, this is an important way for society to be constructed so that 

it can actually operate. So we don’t always get to pick and choose. 

I think the idea that one religious group would receive a free 

pass, I think that that is very unfair and I don’t think that that 

is right. 

Mr. GINGREY. Well, I am going to interrupt you because I think 

that your answer is no. And no matter how long you talk, the answer is going to be no. It seems to me quite honestly the only 

choice you believe people should have are choices that fit with your 

own philosophical views. The views that you espouse are not 

choices but rather imposing of those views on people regardless of 

their moral or religious views or convictions. Quite honestly, Mr. 

O’Brien, that doesn’t sound very American to me. 

I am going to go back to Dr. Stevens and Ms. Belford and Mr. 

Cox in the remaining time that I have. In looking at this interim 

206 

rule, I guess that Catholic hospitals and providers could limit their 

hires to Catholics and of course only deliver care to Catholics. Is 

that the healthcare system that we ultimately want, one in which 

Catholics treat Catholics, Protestants treat Protestants, Muslims 

treat Muslims, or should this government instead encourage hospitals and providers, the doctors, to treat all patients? 

Mr. STEVENS. Should encourage to treat all patients. 

Ms. BELFORD. That is a fundamental tenet of our faith, that we 

care for our neighbor and love our neighbor as ourselves. So yes, 

we should care for all. 

Mr. COX. It would be inconsistent with our religious mission to 

limit our services only to Catholics. 

Mr. GINGREY. Well, I thank the three of you. I certainly agree 

with that. 

Mr. Cox, I am going to conclude with you in the half-minute I 

have left. Going back to previous questions, can you explain the difference between California’s law on benefits and the impending 

HHS rule that we are discussing here today? 

Mr. COX. They are very similar and particularly with respect to 

the definition of religious employers. HHS borrowed or utilized the 

definition that was first developed by California in its contraceptive 

mandate statute. They differ in this regard: that you can get out 

from under the mandate in California if you decide not to cover 

those prescription drug benefits in your health insurance plan, and 

our members are also able to self-insure under ERISA. They have 

been able to up until now self-insure under ERISA and get out 

from under the mandate. Also, the California statute does not cover 

sterilization, which the HHS rule does and will compel us to cover 

in our health insurance plans. 

Mr. GINGREY. Thank you, Mr. Cox. 

Mr. Chairman, I yield back. Thank you for your patience. 

Mr. PITTS. The Chair thanks the gentleman and recognizes the 

gentlelady from Wisconsin, Ms. Baldwin, for 5 minutes for questions. 

Ms. BALDWIN. Thank you, Mr. Chairman. 

I have a few questions for our witnesses but I would like to first 

point out that here we are again, once again in the middle of what 

has been described as the Republican war on women. At a time 

when our committee and our Congress should be coming together 

to put America back to work, putting partisan divisions aside in 

the interest of the people, once again our committee is advancing 

issues that divide Americans, and in this case, issues that infringe 

on women’s rights. 

Today, the majority is focusing on yet another effort to limit 

women’s access to essential and medically necessary treatment options. And in particular, my colleagues would like to limit the number of new group or individual health insurance plans that will be 

required to provide preventative services for women without costsharing requirements. The Affordable Care Act makes significant 

strides in expanding access and making healthcare affordable for 

women. Thanks to this law, being a woman can no longer be considered a preexisting condition, and thanks to a provision in the Affordable Care Act that we are discussing today, women will now 

have access to preventative services that have been too costly for 

207 

so many up until now. That is unless Republicans succeed in their 

efforts to limit the number of health plans that are required to 

cover such preventative services. 

I would like to explore this issue further and ask our witnesses 

some questions. Dr. Stevens, Mr. Cox, and Ms. Belford, as you 

know, I believe Congressman Fortenberry has introduced a bill, 

H.R. 1179, the Respect for Rights of Conscience Act. This bill would 

amend the Affordable Care Act such that health plans would not 

be required to provide coverage or pay for coverage for any service 

that is ‘‘contrary to the religious or moral convictions of the sponsor 

or issuer or the plan.’’ Just so the record is clear—and this question 

is for each of you—do you support this legislation? Dr. Stevens? 

Mr. STEVENS. I do support that legislation. 

Ms. BALDWIN. Mr. Cox? 

Mr. COX. We support it. 

Ms. BALDWIN. Ms. Belford? 

Ms. BELFORD. Yes. 

Ms. BALDWIN. Thank you. Now, Ms. Belford, as the attorney on 

the panel, I want to ask you some questions related to the provision of H.R. 1179. As I read it, an employer can exclude from its 

insurance coverage for its employees coverage of any service that 

is contrary to the religious or moral convictions of that employer. 

So if you can answer the following with a yes or no, that would be 

greatly appreciated with our time constraints. Under this language 

that I quoted, could a plan exclude coverage for certain infertility 

services because the plan sponsor has a religious objection to such 

services? 

Ms. BELFORD. I can only speak to what our plan provides and 

what our—— 

Ms. BALDWIN. No, the quoted provision of Mr. Fortenberry’s bill 

if it were to be passed into law, I am wondering if under that language I quoted could a plan exclude coverage for certain infertility 

services because the plan’s sponsor has a religious objection to such 

services? 

Ms. BELFORD. Hypothetically, I think it probably could. 

Ms. BALDWIN. Thank you. Under that language, could a plan exclude coverage for alcohol and drug addiction services because a 

plan’s sponsor believes that use of alcohol or drugs is sinful? 

Ms. BELFORD. I honestly don’t know the answer to that question 

because these are all services that we provide under our health 

plan. 

Ms. BALDWIN. But under the language of the Fortenberry bill, 

health plans would not be required to provide coverage or pay for 

coverage of any service that is contrary to the religious or moral 

convictions of the sponsor or issuer. So under that language could 

a plan exclude coverage for alcohol and drug addiction because the 

plan’s sponsor believes that the use of alcohol or drugs is sinful? 

Ms. BELFORD. Theoretically. I am not aware of religions that do 

and I guess I would have to look with reference to what our Federal laws and constitutional cases have indicated with regard to 

what our moral and religious—— 

Ms. BALDWIN. So you don’t know the answer to that question. 

Ms. BELFORD. I really don’t. 

208 

Ms. BALDWIN. OK. Under the language I quoted, could a plan exclude coverage for HIV and AIDS patients because the plan’s sponsor expresses moral objections to homosexuality? 

Ms. BELFORD. This is a hypothetical question but I just have to 

say in our church we care for all people and we don’t—— 

Ms. BALDWIN. That is not the question. 

Ms. BELFORD. We don’t decline services—— 

Ms. BALDWIN. We are considering legislation that will have impacts if passed. Mr. Chairman, would I be able to be granted an 

additional 30 seconds? 

Mr. PITTS. Without objection. 

Ms. BALDWIN. Under the language that I quoted could a plan exclude coverage for blood transfusions because the plan’s sponsor is 

religiously opposed to this medical service even in an emergency 

situation? 

Ms. BELFORD. I don’t know the answer to that. 

Ms. BALDWIN. Under this language could a plan exclude coverage 

for unmarried pregnant women because the plan’s sponsor has a 

religious objection to premarital sex? 

Ms. BELFORD. We don’t exclude such coverage so I don’t—— 

Ms. BALDWIN. I am not asking about your plan. 

Ms. BELFORD [continuing]. Know whether that would be the case. 

Ms. BALDWIN. Well, I hope that you see the point that I am trying to make here. The scope of H.R. 1179 is broad enough to exclude anything to which an employer decides it is religiously or 

morally opposed. There is absolutely no standard, no guidelines in 

place for making such a decision. This bill would also undo State 

law and it would completely undermine the Affordable Care Act. 

Mr. GINGREY. Would the gentlelady yield to me when she has a 

little time? 

Mr. CASSIDY. I would point out she is way over 30 seconds. 

Mr. PITTS. The gentlelady’s time has expired. 

Ms. BALDWIN. Thank you, Mr. Chairman. 

Mr. PITTS. The Chair thanks the gentlelady, recognizes Dr. 

Cassidy for 5 minutes for questions. 

Mr. CASSIDY. Folks, I got 5 minutes so if I interrupt you, it is 

not to be rude. It is just because I have 5 minutes. 

Now, Mr. O’Brien, Dr. Stevens raised an interesting point of 

moral complicity, but it appears and frankly if we view the employer as merely an extension of the State, we can take Representative Baldwin’s point and extend it to terrible things where the 

State might demand something terrible and the employer is merely 

an extension, a puppet being dictated by a law who would have to 

comply. So I think this cuts both ways, but I gather that you feel 

as if moral complicity is not an issue if an employer is mandated 

to cover a service which he particularly finds objectionable. 

Mr. O’BRIEN. We think Catholicism and we think—— 

Mr. CASSIDY. No, no, no, just in general. 

Mr. O’BRIEN. In general fairness I think that a properly formed 

conscience requires us to have respect for the consciences of others. 

So I think that—— 

Mr. CASSIDY. That said, we also are responsible for ourselves, so 

if the employer finds something objectionable, again, if you say that 

it is incredible to suggest that a healthcare plan has a conscience, 

209 

but it is not really the healthcare plan; it is the purchaser of the 

healthcare plan that has a conscience. I gather that you think it 

is incredible that the purchaser of that healthcare plan would 

manifest her conscience through the benefits covered. Is that correct? 

Mr. O’BRIEN. I believe that due deference to the consciences of 

others is an essential element—— 

Mr. CASSIDY. No, but is it correct that you would find it incredible that the purchaser of a healthcare plan would manifest her 

conscience as regards with services she would elect to cover for employees? 

Mr. O’BRIEN. I think if you are talking about individuals, I believe in the right of individual conscience. 

Mr. CASSIDY. So I am thinking of a small business owner, she 

has got 35 employees and she is making a decision as to what benefits to cover. It is she that is making it, she is an individual, and 

you find it I gather incredible that she would reflect her values 

through the services provided. 

Mr. O’BRIEN. I think an employer, a company, an institution, I 

think that the job of an institution is to give due deference to the 

consciences of all—— 

Mr. CASSIDY. So she is also filing as an S corp. so she is actually 

taking income from the business as her own income. If you will 

there is an identity that is respected in other aspects of the law 

that is recognized by the IRS and others. But again, you seem to 

find it incredible—I am not quite getting the yes or no. In fact let 

me do what Ms. Baldwin did or Mr. Pitts, which is a yes or no. 

Do you find it incredible that that small business owner—— 

Mr. O’BRIEN. No. 

Mr. CASSIDY [continuing]. Would attempt to reflect her values in 

the services she covers. 

Mr. O’BRIEN. I don’t think that an employer has a right to insist 

that their values—for example, if an employer—— 

Mr. CASSIDY. OK. That is fine. You know, you have made your 

point. You don’t think so. Again, I have only 5 minutes. 

Mr. O’BRIEN. Sorry. 

Mr. CASSIDY. So at that point, the employer’s conscience merely 

becomes an extension of what the majority party is able to put 

through without an open hearing through HHS. Ultimately, that is 

it, correct? Yes, no? 

Mr. O’BRIEN. I believe that it is the job of the institution to facilitate the consciences of all people. 

Mr. CASSIDY. So again all people is interesting because we are 

not really facilitating the conscience of that small business owner 

who would like her values to be reflected in the benefits she provides. And you also reject moral complicity. So if that small business owner puts out a product, somehow you have divorced her 

from the actions of her company. So if she puts out a product which 

is harmful, there is no moral complicity there? 

Mr. O’BRIEN. I don’t think that it is speaking to what the actual 

issue is. 

Mr. CASSIDY. No, the question is—— 

Mr. O’BRIEN. The issue is whether—— 

Mr. CASSIDY. I only have 5 minutes. 

210 

Mr. O’BRIEN. OK. 

Mr. CASSIDY. And so again if we are going to take a holistic viewpoint of what this small business owner is doing, if she put out 

something which was known to be harmful, we would call that— 

in terms of a product—we would call that morally reprehensible 

and we would ask her conscience to be sharper. But then we can 

turn around and say she has no right to judge what products 

should be covered by her insurance that she provides for her employees. That is a cognitive dissonance. 

That said, let us also make the point, Dr. Hathaway, that this 

is really not about access for preventive services for those who are 

poor. They are currently covered through Medicaid and SCHIP, 

that I have been told IUDs can be placed right after delivery, 

which is a long-term form of birth control. I am not an OB/GYN; 

I am a gastroenterologist, you know, so whatever that is worth. But 

that said, this is not about access for the poor, and for those who 

have coverage, I see that the generic birth control pill can cost $14 

a month through 340(b) pricing. If we are going to say through legislation that everything has to be covered equally, then really we 

are saying to people don’t choose the $14-a-month pill; choose the 

$100-a-month pill, which is also bad social policy. We just run out 

of money at some point in our good will. 

I yield back. Thank you. 

Mr. PITTS. The Chair thanks the gentleman and we have—— 

Mr. GINGREY. Mr. Chairman? 

Mr. PITTS [continuing]. Unanimous consent request from Dr. 

Gingrey for 1 minute to respond since our friend, Ms. Baldwin, 

went 1 minute over, so without objection. 

Mr. GINGREY. And I thank my colleagues for allowing me the 

minute because Ms. Baldwin was going down a line of 

hypotheticals in regard to objection to blood transfusions, objection 

to treating AIDS patients, and I want to make sure and I want to 

particularly direct this to the 3 panelists that I asked questions of 

before in regard to the Catholic principle that the intimate relationship between husband and wife is for the purpose of 

procreation of children and not simply recreation as a number one 

principle. And the second principle, even more important, the 

Catholic principle is that life begins at conception and should never 

be deliberately terminated. I would think that this is the reason 

that the three of you are opposed to this interim rule and I just 

want to get your response on that because this is a very narrow 

area in which you would be opposed to sterilization, you would be 

opposed to abortion, you would be opposed to your hospital prescribing birth control pills or abortifacients. Is that not the crux of 

this problem? Very quickly yes or no. 

Mr. STEVENS. Yes. 

Ms. BELFORD. Yes. 

Mr. COX. Yes, we have not been covering those services in our 

health insurance plans for a very, very, very long time. It is only 

now that the government comes forward and says we are going to 

require you to abandon that practice and violate your conscience. 

Mr. GINGREY. Thank you all very much. 

And Mr. Chairman, thank you for—— 

211 

Mr. PITTS. The Chair thanks the gentleman. That concludes the 

first round of questioning. We will go to one follow-up per side. Dr. 

Burgess for 5 minutes. 

Mr. BURGESS. Yes, Dr. Hathaway, if I could—and I won’t use the 

entire 5 minutes to question. What I am going to ask is likely going 

to require a longer response, and if you wish to respond in writing, 

that is perfectly acceptable. 

But first let me ask you, you talked a little bit in your testimony 

about the amount of money that is spent. Can you tell us between 

Title X, Medicaid, and temporary assistance for needy families how 

much money is spent on family planning by the Federal Government every year? 

Mr. HATHAWAY. I don’t know that number. 

Mr. BURGESS. But it is a lot, right? 

Mr. HATHAWAY. I presume so. I don’t know that number. 

Mr. BURGESS. Yes, I don’t either. That is why I am asking you 

but it is likely to be well in excess of a billion dollars. In fact it 

may be a multiple of that. And you referenced—— 

Mr. HATHAWAY. Pardon me, Chairman. I think also we need to 

recognize that what this Institute of Medicine’s recommendation 

has to do with is insurers would cover contraceptive family planning methods. We are not talking exclusively about public assistance programs. We are talking about insurers throughout the 

board. So we are now paying a tremendous amount of money, those 

of us that have private insurance—— 

Mr. BURGESS. Correct. 

Mr. HATHAWAY [continuing]. For coverage and we are not talking 

about an incredibly—— 

Mr. BURGESS. Reclaiming my time. And we are going to pay 

more under the IOM’s guidelines. Dr. Cassidy is a gastroenterologist. He doesn’t prescribe birth control pills, but I would 

submit that if the IOM were to require that everyone who comes 

into his clinic be able to get whatever proton pump inhibitor that 

they want, regardless of cost, nobody is going to buy the generic 

Wal-Mart $4-a-month prescription, which is available for the 

generics of Tagamet and Zantac and some of the earlier products. 

Everyone is going to get NEXIUM because that is the best and why 

wouldn’t you want to best? But the cost differential is substantial 

between $4 a month to $100 a month. That is going to have the 

effect of driving up the cost of the product for everyone, whether 

they be on public assistance or not. Everyone who is on employersponsored insurance is going to bear the brunt of that cost. That 

is the way insurance works, is it not? 

Mr. HATHAWAY. My understanding is that insurers, insurance 

systems have formularies for just that reason, to reduce—— 

Mr. BURGESS. Correct. And that is a good point because that is 

the point I was trying to make with my experience at Parkland 

Hospital. But under the interim final rule, my read of the Federal 

Register is you don’t get to use a formulary. You get to have any 

product that is marketed as being used for that, and that is the 

reason for the comparison between Necon and Seasonique. There is 

a vast difference in the price differential of those 2 compounds. 

Mr. HATHAWAY. So can I interrupt? 

Mr. BURGESS. Yes. 

212 

Mr. HATHAWAY. Let me put it this way. It is interesting sitting 

here—— 

Mr. BURGESS. Well, let me just ask you the question. I have 

Aetna health savings account. 

Mr. HATHAWAY. Um-hum. 

Mr. BURGESS. I use a formulary with them. I only go to their 

Web site and buy the products they tell me I can buy. But as I understand it, under the IOM guidelines, there would be no such prohibition. There would be no allowance for a formulary for contraception, is that correct? 

Mr. HATHAWAY. I am not aware of that. I don’t know that. 

Mr. BURGESS. Well, that is my read of the Federal Register. 

Now, again, this is the problem with an interim final rule. We 

didn’t get to talk about any of that, we didn’t get any transparency, 

and, you know, forgive me if I make the leap of faith and say the 

reason for the interim final rule was precisely for these conscience 

protections that are getting so much discussion this morning. There 

was a reason that they followed that trajectory. There is a reason 

that they went there, say, we can’t wait past August because we 

have got this to get out there. Well, that is nonsense. This argument is going to be going on for a long time and just so you could 

get this year’s student population covered under these rules to me 

was not a valid assertion unless you have a political calculation 

that may be geared for November 2012. And that may very well 

have been the case with this, but in the meantime, the individuals 

who claim that their conscience provisions are going to be violated—and I think they are exactly right with that—they are the 

ones who are suffering as a consequence of what is very bad policy 

and a very bad way of going about that. 

Let me ask you, though, you mentioned that child spacing and 

that there is a societal benefit and I don’t disagree with that. I am 

an OB/GYN myself. I agree with what you are saying but I am certainly interested with the billions that we are spending on family 

planning through all areas of the Federal Government, what is our 

return on investment for that? Now, we already know, for example, 

that many of the people who are counted as uninsured actually 

have access to SCHIP, Medicaid, maybe even a COBRA program 

that they don’t avail themselves of. And if you really scrutinize 

emergency room populations, you will come across those folks. So 

what is the evidence that providing these dollars in the family 

planning area gives us that benefit in child spacing? 

Mr. HATHAWAY. Lots and lots of evidence. For every dollar spent 

on family planning services, there is about $4 or $5 saved—— 

Mr. BURGESS. And I would appreciate it very much because we 

are out of time if you could provide me references for those, I would 

be anxious to look at that. 

Mr. HATHAWAY. I would be delighted. Thank you so much. Thank 

you. 

Mr. BURGESS. Thank you very much. 

I will yield back, Mr. Chairman. 

Mr. PITTS. The Chair thanks the gentleman and recognizes the 

gentleman, Mr. Engel, for 5 minutes for the follow-up. 

Mr. ENGEL. Thank you very much, Mr. Chairman. 

213 

First of all, I want to say that I respect people’s consciences. This 

is a sensitive issue, and it is sensitive all the way around, and 

while I don’t think anyone should be forced to provide services that 

morally they feel that they cannot do, I think conversely it works 

the other way as well. I think that people who make their own 

choices and their own decisions should not be impeded from getting 

the services that they want and they need. I think this is an important hearing to discuss this very important issue of coverage for 

preventive services. And I believe there have been many significant 

advances that the Affordable Care Act made in access to quality 

and affordable care for women. 

I am sorry we have another hearing which seems designed to attack the significant advances that the Affordable Care Act made for 

women. HHS’s final interim rule is a significant step in the right 

direction of providing women access to coverage to a whole range 

of healthcare needs that are very specific to women, and I applaud 

their efforts. I am just concerned once again we are undermining 

or attempting to undermine these benefits that women have. The 

cost that is placed on women in order to get access to all their 

healthcare needs is something that we ought to be concerned with. 

And again with respect to the religious exemptions, I would say 

that the Department of Health and Human Services has made a 

significant effort to allow religious organizations to opt out of the 

requirements, to provide coverage for contraception. I support that. 

I don’t think anyone should be forced to do it, but I think that 

works again both ways. I mean you need to be sensitive both ways. 

So my first question is for Dr. Hathaway. HHS’s interim final 

rule has already accounted for the concern of providing coverage for 

contraception. In your testimony, you mention that cost is a barrier 

for many women who cannot afford access to quality medical information. In your opinion, Doctor, what will be some of the most significant benefits for women who can now have access to coverage 

for preventive services? 

Mr. HATHAWAY. You know, I am sitting here thinking some days 

I feel as though I am pretty passionate about this. There are other 

days that I wish I could be more passionate, and the only way I 

think I could do that is if I were a woman or a woman of color or 

a woman of lower social economic strata. And since I can’t do that, 

I have to hope that I can present the voice that I try to do as best 

I can. Preventive healthcare, contraception care, family planning 

services are incredibly important for multitudes of women in our 

country, and I think we are fooling ourselves if we are not looking 

at the cost savings and the amount of despair we have put women 

into for years and years and years. We have moved to a whole different era of contraception. You know, this is a 50th anniversary 

of oral contraceptive pills and yet they have saved and helped 

many, many women for years throughout our country as well as 

many other countries, and yet we are in a different era. If I were 

to ask any of us in this room how easy it is to take a pill every 

day, most of us would say it is pretty darn difficult. Most women 

would say they would like to wait at least a year or more to avoid 

the next pregnancy or a pregnancy at all. And therefore, we ought 

to be able to help them. Whether it is private insurance or no inVerDate Aug 31 2005 14:55 Dec 10, 2012 Jkt 037690 PO 00000 Frm 00217 Fmt 6633 Sfmt 6633 F:\112-10~3\112-10~1 WAYNE
214 

surance, we need to be able to help those women space and prevent 

the pregnancies when they want to. 

Mr. ENGEL. So let me just follow up with that because you mention in your testimony—which is consistent with what you just 

said—that access to coverage for counseling, education, and contraception is very important for women of all socioeconomic backgrounds, but specifically, the women who cannot afford access. So 

what impact would efforts to roll back this interim rule have on 

women’s health and what would a continued cost barrier mean for 

women who cannot afford the access to care? 

Mr. HATHAWAY. Detrimental. I feel as though, you know, the 

women who are currently not using the most effective methods or 

have no access to any method at all are still going to struggle without this moving forward. I think the Institute of Medicine’s recommendations are very, very strong and I applaud them. I think 

it is a wonderful move for our country. 

Mr. ENGEL. Thank you, Dr. Hathaway. 

Thank you, Mr. Chairman, and I yield back. 

Mr. PITTS. The Chair thanks the gentleman. 

That concludes the final round of questioning. I would like to 

thank the witnesses for your testimony today and this concludes today’s hearing. 

I remind members that they have 10 business days to submit 

questions for the record, and I ask that the witnesses please agree 

to respond promptly to these questions. 

With that, thank you. The subcommittee is adjourned. 

[Whereupon, at 12:21 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

215 


75050.168

Questions for the Record 

Response by David L. Stevens, MD, MA (Ethics) 

CEO, Christian Medical Association 

Committee on Energy and Commerce, Subcommittee on Health 

United States House of Representatives 

Response submitted December 5, 2011 

Re: U.S. of Health and Human Services nT,'w'nt,vp services rule 

The Honorable Joseph R. Pitts 

1. Please indicate whether you are aware of any of the following alleged instances ever 

occurring in medicine or if you believe there is any reasonable basis to assume they 

would occur following enactment of conscience protection legislation: 

a. A physician refusing to refer a patient for alcohol or drug addiction sen'ices because 

the physician believes that use of alcohol or drugs is sinful? 

b. A physician refusing to treat HIV and AIDS patients because the physician 

expresses moral objections to homosexuality? 

c. A physician refusing to participate in blood transfusions because the physician 

is religiously opposed to this medical sen'ice even in an emergency 

situation? 

d. A physician refusing to treat or deliver the babies of unmarried pregnant women 

because the physician has a religious objection to premarital sex? 

Response to question 

I am not aware of any instances where these alleged instances have occurred in the past and do 

not find any reasonable basis to assume they would occur following enactment of conscience 

protection legislation. 

I and all the faith-based, pro-life health care professionals and institutions I know have 

endeavored to provide the best medical care possible to patients addicted to alcohol or drugs, to 

HIV and AIDS patients, and to unwed mothers. 

The peculiar speCUlation that patients needing blood transfusions somehow will not be able to get 

them because of conscience rights is groundless and sadly indicative of the spurious attacks on 

conscience rights. I have never heard of any patient ever being denied the ability to get a blood 

transfusion on the basis of a conscientious objection by a health care professional or institution. 

The only group I am aware of that holds objections to blood transfusions is the Jehovah's 

Witnesses, a small sect outside of orthodox and mainstream Christianity. To my knowledge, 

there are no Jehovah's Witnesses hospitals. It stretches credulity to think that somehow a (very 

confused) Jehovah's Witness would choose a profession that routinely requires the provision of 
216 


75050.169

blood transfusions and that this Jehovah's witness would somehow end up being the only 

individual in an entire hospital who could facilitate a blood transfusion. 

Given the commitments, values and practices of the Christian Medical Association's over 16,000 

members, it is equally unreasonable to assume that any of these speculated instances would 

somehow occur following enactment of conscience protection legislation--including, for 

example, H.R. 1179 (the Respect for Rights of Conscience Act), H.R. 361 (the Abortion NonDiscrimination Act), H.R. 358 (the Protect Life Act), or H.R. 3 (the No Taxpayer Funding for 

Abortion J\ct). 

The assumptions behind the questions actually demonstratc a misrepresentation of the role of 

conscience rights in health care and an apparent misunderstanding of the faith-based medical 

community. 

The fcderal conscience rights reflected in current law and proposed in H.R. 1179 protect health 

care professionals from being denicd the right to make moral choices by being forced to 

participate in procedures and prescriptions they consider unethical. Neither current law nor 

pending current conscience protection legislation contain any language permitting health care 

professionals refusing to treat whole classes of patients who require medical treatment as a result 

of the patients' choices that the professional considers immoral. 

For example, ifH.R. 1179 were passed, it would amend the Patient Protection and Affordable 

Care Act (PPJ\CA, Public Law 111-148; 42 U.S.C. 18022(b» to apply conscience protcctions 

that will protect health care professionals and entities from being forced to participate in 

procedures and prescriptions they consider unethical. The bill explicitly retains consistency with 

PPACA's prohibition of discrimination against patients based on a wide range of factors 

including "age, disability, or expected length oflife" and "present or predicted disability, degree 

of medical dependency, or quality of life." The bill does not provide any new opportunities 

whatsoever for anyone to discriminate against patients whose medical condition may be caused 

by a moral choice or lifestyle. 

Regarding the role of conscience and the raith-based medical community, this singular principle 

prevails: 

Moral conviction and compassion are inseparable. 

The same conscientious moral commitment that prevents participation in life-ending procedures 

such as abortion also compels faith-based professionals and institutions to especially reach out in 

compassion to care for patients who do not adhere to the faith or follow faith-based moral 

commitments. This is why one finds so many faith-based professionals and institutions working 

with marginalized patients and in medically underserved areas. 

In my practice as a faith-based medical professional, I and every faith-based medical colleague 

and institution I know of have compassionately and without discrimination cared for patients 

whose choices, including moral choices, have caused disease and damage. 

We routinely and deliberately treat patients regardless of their faith and moral choices--choices 

which themselves often cause the need for treatment, such chronic smoking, aleohol abuse or 
217 


75050.170

illicit drug use. Bccausc I do not basc thc medical treatment I provide on the moral choices of my 

patients, I have personally treated--with an unwavering commitment to medical carc quality--

thicves, rapists, child molestcrs, murderers on death row and even those involved in genocide in 

Africa. 

Conscience rights only would have impacted any of these instances if! had been asked to 

facilitate or participate in the patients' actions. 

Because of my conscience convictions and medical ethics, I wouldn't hand out cigarettes to 

smokers or help an alcoholic find a bar. I wouldn't help a rapist avoid conviction by destroying 

DNA evidence or falsify a jailed murderer's symptoms to transfer him to a hospital to escape. I 

wouldn't give a drug addict a prescription for Oxycontin, and I wouldn't give a machete to a man 

involved in genocide in Kigali. If! did, I would be morally complicit in actions that I either 

consider morally wrong or medically ill-advised. My conscicnce and commitment to medical 

ethics standards prevents mc from participating in such actions. 

Additional comments 

Despitc my pcrsonal opposition to abortion, I have treated many women who have had an 

abortion. I have and will counsel women concerning abortion when asked telling them about the 

procedurc, thc complication rates, psychological etTects and other alternatives--just as I do with 

any proccdure. 

But if I refer the patient for an abortion procedure, I become morally complicit. I facilitate and 

become a participant in the death of another human being. I endorse the morality and methods of 

thc doctor I refer her to and cnter into a professional relationship with that physician. That is 

something I cannot do. 

In the samc way, certain misclassified "contraceptives" work by causing the destruction of a 

developing human being by preventing the embryo's implantation in the womb ("Plan Bn) or by 

dcstroying its vital blood supply after implantation (Ella). I will not recommend, pay for or 

prescribe such an abortifacient. 

HeaIthcarc professionals are not claiming somc new right. They simply want to exercise their 

right guarantced for over 200 years under the First Amendment in the Bill of Rights. Its meaning 

is clcar. Before it was made more concisc in committee, James Madison worded it explicitly: 

"The Civil Righcs of none shall be abridged on account of religious 

belief or worship, nor shall any nacional religion be escablished, 

nor shall the full and equal rights of conscience be in any manner, 

nor on any pretext infringed. I! 

The new contraceptive insurance mandate infringes the constitutional right of conscicnce of 

millions of Americans, on the pretext that evcry woman has a "right" to contraceptives at no 

charge. Such a "right" is nowhere found in the Constitution. 

Meanwhile, the constitutional rights of frec cxcrcise of rcligion, speech and association remain 

clear. Conscientious health care professionals only ask that these rights be clearly reflected in 

law. 
218 


75050.171

Questions from the U.S. House of Representatives 

Energy and Commerce Committee, Subcommittee on Health 

December 13, 2011 

Chairman Joseph R. Pitts 

US House of Representatives 

2125 Rayburn House Office Building 

Washington, DC 20515-6115 

1. Throughout your testimony you indicated that the mandate will help women of low income. 

You shared an anecdote about one of your patients, ·Sarah." You indicated that Sarah is 

uninsured. Given that Sarah is uninsured, what benefit would the Interim Final Rule on 

Women's Preventive Services, as it relates to contraceptives, have for her? 

The Affordable Care Act provides a method for every uninsured American to gain access to 

health insurance coverage. All health plans, both publicly and privately sponsored, that will be 

made available to uninsured women, will be required to cover a comprehensive set of 

preventive health services including all FDA-approved contraceptives, the family planning visit, 

and the contraceptive counseling required to ensure women have the method that most 

effectively meets their health care needs. 

The woman I identified in my testimony, Sarah, is a 22 year-old mother of two who currently 

lacks health insurance coverage. She is working two jobs to support her family and is struggling 

to make ends meet. As I testified, she could not afford the $300 intrauterine device she needed 

to help her prevent an unintended pregnancy. As a working mother, Sarah is likely to gain 

access to subsidized health insurance coverage under the ACA. However, because of her limited 

income she would still face difficulty accessing the contraception she needs because of the 

burdensome cost-sharing requirements currently required in health insurance plans. 

Several studies show that even nominal cost-sharing can be a barrier to contraceptive access 

for many women. A 2004 national survey of women 18-44 who were using reversible 

contraception found that one-third of them would switch methods if cost was not a factor in 

their decision-making.' 

I Jennifer Frost and Jacqueline Darroch, "Factors associated with contraceptive choice and inconsistent 

method use, United States, 2004," Perspectives on Sexual and Reproductive Health, 40 no. 2, (2008): 94-

104. 
219 


75050.172

The interim final rule implements the women's health preventive services requirement which 

will mean that Sarah can obtain the contraceptive services she needs without any additional cost 

to her and her family. This will allow her to prepare and plan for her future by accessing 

preventive health services that are important to her health. 

2. Was Sarah a recipient of Title X Services? Could you please clarify how much the US 

Government (USG) paid for Title X family planning services in the last year for which this 

data is available? Could you also provide the amount in total that the USG paid for family 

planning services In the latest year for which information is available? Should these funding 

levels change once the new contraceptive mandate goes into effect? 

Sarah received family planning services from Unity Health Care, a federally qualified health 

center in the District of Columbia and the Title X grantee for the Washington, DC metropolitan 

area. The Title X program provides resources to public health providers that allow them to offer 

free and reduced family planning services to uninsured and underinsured women and men. 

From its inception, Title X was designed to subsidize but not cover the full costs associated 

with family planning care -- in no case does Title X pay for the full cost of a patient visit or a 

clinician's time, for example. Sarah received family planning services at Unity Health Care which 

were supported in part by Title X funds. Patients do not receive Title X funds, the funds are 

provided to community health providers who can deliver the care. 

(a) The Title X family planning program is an important public health program that over five 

million women and men rely on each year to access health services at more than 4,500 

service delivery sites. For forty years, the Title X family planning program has provided 

quality confidential family planning services to millions of poor and low-income 

individuals who frequently lack access to any additional health care. Despite the fact 

that the program has been so successful, the Title X program sustained a 5.5% cut and 

was funded at $299.4 million in fiscal year 2011. In 2009 service delivery sites 

experienced an increase of more than 130,000 patients over 2008. This is the largest 

number of patients in the last 10 years,2 and stems from the worst recession the United 

States has seen in 70 years. 

(b) In FY 2006, public expenditures for family planning services including Title X, the 

Medicaid program and revenue from other public health programs totaled $1.85 billion. l 

From FY 1980 through FY 2006 public funding for family planning services rose 18% 

(adjusted for inflation).' This figure represents a very small increase in expenditures. 

'RTllnternational, Family Planning Annual Report: 2010 National Summary, Office of Family Planning, 

Office of Population Affairs, September 2011. 

l Adam Sonfield, Casey Alright and Rachel Benson Gold, Public Funding for Family Planning Sterilization 

and Abortion Services FY 1980-2006, Guttmacher Institute, January 2008. 

4 Ibid. 

2 
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Incidentally, the US taxpayer spends Sll.l billion annually on unintended pregnancy.' 

This figure represents what the nation spends in Medicaid expenditures for pregnancy 

and infant care. The figure does not account for other medical and societal costs 

associated with unintended pregnancy. It should be noted that but for the investment 

the US government makes in family planning the cost to the taxpayer would be much 

higher. For every $1 spent on family planning saves almost $4 in Medicaid 

expenditures.6 Study after study shows that investment in family planning services 

benefits millions of women. More than nine million low-income women rely on publicly 

funded family planning services enabling them to avoid almost two million unintended 

pregnancies.' In addition to reducing unintended pregnancy, publicly supported family 

planning has shown to benefit low-income women and their families by reducing 

interbirth intervals which are known to adversely impact birth outcomes.' For these 

reasons and many others not identified, the US government should be expanding not 

shrinking its investment in family planning. 

3. Following up on the line of questioning by Rep. Burgess regarding cost-analysis of 

different contraceptive methods, could you please provide the range of costs for FDAapproved contraceptives along with citations? 

Contraceptives can range in cost from as low as $1-$3 for condoms to as high as over $500 for 

the more effective long-acting reversible contraceptive methods such as the intrauterine device. 

Please find below the price estimates for Food and Drug Administration approved contraceptive 

methods." The prices represent estimates based on surveys of Planned Parenthoods service 

delivery sites, family planning clinics, and various retailers, and are the cost of the method to 

patients without insurance coverage. The cost of each method may vary greatly depending on 

the specific brand of contraceptive, the insurance coverage and income of the patient, and the 

retailer, service provider, or pharmacy from which the method is purchased. 

Birth control patch - $45-50 (per month) 

Cervical cap - $55 plus fee for fitting (lasts up to a year) 

Depo-Provera - $75 (lasts three months) 

5 Adam Sonfield, The Public Costs of Births Resulting from Unintended Pregnancies: National and StateLevel Estimates, Guttmacher Institute. 

6 Jennifer Frost, Lawrence Finer and Athena Tapales, "The Impact of Publicly Funded Family Planning Clinic 

Services on Unintended Pregnancies and Government Cost Savings" journal of Health Care for the Poor and 

Underserved, 19 no. 3 Ouly 200B). 

'Rachel Gold, "Wise Investment: Reducing the Steep Cost to Medicaid of Unintended Pregnancy in the 

United States," Guttmacher Policy Review, 14 no. 3 (Summer 2011). 

8 Ibid. 

9 "Bed sider," National Campaign to Prevent Teen and Unplanned Pregnancy, accessed December 9,2011. 

3 
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75050.174

Diaphragm $15-75 plus fee for fitting (lasts up to 10 years) 

Emergency contraception - $30-$55 (per use) 

Female condom - $3.50 from CVS (per condom) 

Implanon $481 plus insertion fee (lasts up to three years) 

IUD - $450 to $550 plus insertion fee (lasts up to 10 years) 

Male condom - $0.18 - 1.83 (per condom) 

NuvaRing - $ 5 5 (per month) 

Oral contraceptive - $10-90 (per month) 

Sponge - $ 5-6 (per use) 

In addition, please find attached two articles that outline the barrier that contraceptive costs 

can present to patients. 

1. Mark Hathaway, "On the 50th Birthday of the Birth Control Pill, Looking Ahead to 

What's Next," The Women's Health Activist, (November IDecember 2010). 

2. "Contraceptive Methods Available to Office-Based Physicians and Title X Clinics, 

United States 2009-2010," Morbidity and Mortality Weekly Report, Centers for 

Disease Control and Prevention, Oanuary 2011). 

Thank you for the opportunity to respond to the Committee's questions. Please feel free to 

contact me for any further information that you may need. 

Sincerely, 

Dr. Mark Hathaway 

4 
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Published on National Women's Health Network (http://nwhn.org) 

On the 50th Birthday of the Birth Control 

Pill, Looking Ahead to What's Next 

Women's Health Activist Newsletter 

November/December 2010 

By Mark Hathaway, MD, MPH 

Happy 50th, Pills! You have really arrived in the world. Not only are you 50 years old, but 

many, many versions of you have come about in the last half century, and you've gotten better 

with age. Your accomplishments are impressive, and your unexpected benefits are equally 

notable. We salute and celebrate you, Birth Control Pills, but also hope you'll share the limelight 

in future years with some up-and-coming stars in the family planning world. These other players 

have great potential for women's health - if we can get them out into the public more broadly. 

The ability to control fertility was a tremendous breakthrough. The impact for reproductive 

health in general, and for women's health and lives in particular, has been felt worldwide. The 

history of the birth control pill (or oral contraceptive pills rOCPsj) reaches back to the early part 

of the 20th century when Margaret Sanger, Planned Parenthood's founder, dreamed of a pill that 

would prevent pregnancy and be as easy to take as aspirin. Birth control pills were developed in 

the 1950s by scientist Gregory Pincus and physician John Rock, aided by advocacy and 

donations from Sanger and Katharine McCormick, one of the first women graduates ofM.l.T. 

and heiress to a large fortune. The Food and Drug Administration (FDA) approved OCPs in 

1960. 

Today there are over 60 formulations of the Pill, containing varying amounts of estrogen and 

progesterone, and taken on varying cycles. In the last 50 years OCPs have become the numberone contraceptive for women in the U.S. The numbers vary slightly from year to year, but the 

top three birth control methods used in the U.S. today are OCPs (17.9%), female sterilization 

(16.7%), and condoms (13.9%).1 

To be sure, oral contraceptives have many benefits even beyond contraception. The American 

College of Obstetricians and Gynecologists lists several in their evidence-based guidelines: 
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Menstrual cycle regularity 

Decreased amount of menstrual bleeding 

Decrease in pain and mood swings with menses 

Decrease risk of several cancers (uterine, ovarian, colorectal) 

Improved acne symptoms.2 

Make no mistake about it, the Pill works well for many women. If patients can get to a clinician, 

get a prescription, have the insurance or means to pay for OCPs, take them every day, get 

prescription refills, and keep paying for them, OCPs will be about 92 percent effective in 

preventing pregnancy. But for many women, that's a few too many ifs, hitches, barriers, and 

obstacles to overcome, and discontinuation rates and gaps in consistent daily use of OCPs are 

common, putting women at great risk for unintended pregnancy. 

In the urban clinic system and hospital where I work, my colleagues and I sec far too many 

unintended pregnancies. That's not unusual for this country. The percentage of U.S. 

pregnancies each year that are unintended, mistimed, or unwanted is a staggering 50 percent. 

That's three million unplanned pregnancies annually, an astonishingly high number in a country 

that has the knowledge and the means to prevent unintended pregnancies. One result is 

approximately 1.3 million abortions almost half of the unplanned pregnancies end in abortion 

- and too many unwanted births. Some of our most vulnerable women - adolescents, young 

women in their 20s, and underinsured and/or uninsured women - have the highest rates of 

unintended pregnancy. Oral contraceptives (and condoms) are the most commonly used methods 

in this huge sector of our society; I think we're failing them by not providing them with a birth 

control method that is simpler, more effective, and doesn't require daily pill popping, and visits 

to clinics or pharmacies. In other words, we can and should do better. 

This past week, a typical week in my practice, I saw three patients who asked for help with an 

unwanted pregnancy. One woman's story is particularly illustrativc of the challenges women 

face around OCPs. At her appointment, "Molly" described to me that she had recently given 

birth. At her postpartum appointment, she was given a free package of brand-name birth control 

pills (we'lI call them YAZ), and a prescription for six more months of pills. But, her insurance 

was deactivated because she had stopped working in order to stay at home with her newborn; she 

quickly discovered that YAZ cost $65 per cycle. She couldn't get through by phone to her 

doctor to find something cheaper, couldn't get into another clinic for a visit, and couldn't afford 

the $65 cost to refill her prescription. Five weeks later she was pregnant and in our clinic in 

tears. 

What's distressing about lhis story is that Molly was clear, at least with me, that she had wanted 

to avoid pregnancy for at least three to four years. That's a lot of pills to take and a lot of hurdles 

to jump through for 3-4 years to prevent an unintended pregnancy! She wasn't aware of other 

methods and her provider failed to discuss them with her. As Molly found, birth control pills can 

be prohibitively expensive. They are also not the right answer for everyone. Some women want 

to avoid exposure to hormones in the Pill, while others worry about its side efTeets, such as blood 

clots in certain populations. (It should be noted, pregnancy has many more risks than almost any 

birth control method.) 
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75050.177

For the past 30-50 years relying on OCPs as a birth control method for women like Molly who 

do not want to get pregnant in the near-future may have been acceptable because we didn't have 

other options for highly effective and reversible methods. But not now. Today, there are many 

simpler and more effective methods that can better meet Molly's needs and reproductive life 

plans than OCPs do. Specifically, long-acting reversible contraception (LARC), a category of 

birth control that includes two types of intrauterine devices (IUDs), and the single rod hormonal 

implant (SRHI). 

The advantages of LARC methods are that they: 

Do not interrupt the sexual encounter and there's nothing to remember every day. 

Are highly effective (99.2% efficacy or greater) 3 

Offer the highest rates of both continuation and user satisfaction 

Do not require "resupply" prescriptions or frequent officc visits 

Are reversible, with a rapid return to fertility after their removal 

Are suitable for long-term usage (up t07-12 years for the IUD and up to 3 years for the 

implant) 

Are safe for almost all women, even those who cannot take the Pill because of other 

medical conditions 

Although IUDs and the implant have high up-front costs and necessitate the need for office visits 

for insertion and removal, their cost effectiveness surpasses all other reversible methods, even 

over relatively short-term use of 12-24 months. 4 Despite these benefits, IUDs get little attention 

in the U.S., although they arc popular in most other parts of the world. And the implant, first 

introduced in the U.S. in 2006, is still relatively unknown and underutilized. 

So, although LARC methods are safe, more effective, longer lasting, simpler, and more costeffective when compared to OCPs. they represent only 2-4% of contraceptive methods used in 

the U.S.4 Underuse can be attributed to multiple factors, including negative myths about these 

methods, limited advertising, a dearth of trained clinicians, and poor reimbursement from 

government funding sources and insurers. 

In addition, medical providers arc much at fault for the slow uptake of LARC methods, partly 

due to overly restrictive criteria they place on IUD use. A recent patient told us that she had 

called three ob-gyn oftices seeking a gynecologist who would provide her with an IUD. 

"Maggie" is 28 years old and has never been pregnant. She was told that she could not use an 

IUD because she had never been pregnant. The myth here is that IUDs might cause infertility, 

but current evidence indicates there is no increased risk of pelvic inflammatory disease or 

infertility among IUD users. This myth lingers, but the fact is that modern IUDs may be safely 

used by almost all women of reproductive age. We saw Maggie and, in one visit, inserted her 

IUD through a procedure that is only a touch more uncomfortable than a Pap smear and takes 

just 30-60 seconds longer. Maggie now has one of the most effective, reversible contraceptive 

methods in place. 

Little by little, we're improving the use of LARC methods; I imagine much the same process 

occurred 50 years ago when birth control pills were so novel. But, the potential health benefits of 
225 


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LARC methods for women are far too important to wait on. They could make a large dent in the 

astoundingly high rates of unintended pregnancy in our country, if only they were better 

promoted and utilized. Let's not wait another 50 years to celebrate such effective birth control 

methods. 

Mark Hathaway, MD, MPH, is the Director of Community Programsjor Washington Hospital 

Center's Obstetrics and Gynecology Department. This work involves directing Obstetrics and 

Gynecology services at Unity lIealth Care, lne., a system of 14 community health centers 

throughout Washington, DC. The Washington Hospital Center was recently awarded a Family 

Planning Fellowship, which Dr. Hathaway will co-direct. He has recently been elected to the 

Board of Directors of the Association of Reproductive Health professionals (ARHP). 

References: 

I. Mosher WO, Jones J, "Use of contraception in the United States: 1982-2008," Vital Health 

Stat 2010; 23(29). Online at http://www.cdc.gov/nchs/nsfg/abclistc.htm#contraception [I] 

2. ACOG Practice Bulletin #110 "Non Contraceptive Uses of Hormonal Contraceptives," 

Obstetrics and Gynecology 2010; 115(1): 206-18 (PMID 20027071). 

3. Trussel, J. "Contraception Failure in the United States." Contraception. 2004; 70(2): (89-96). 

4. Sonncnberg FA, Burkman RT, Hagerty CG, et aI., "Cost and net health effects on 

contraceptive methods," Contraception 2004; 69:447-459. 

5. Mosher WO, Jones J, "Use of contraception in the Unitcd States: 1982-2008," Vital Health 

Stat 201 0; 23(29). Online at http://www.cdc.gov/nchs/nsfg/abc list c.htll1#contraception [I] 

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226 


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Please note An erratum has been published for this issue. To view the erratum, please click here. 

Centers for Disease Control and Prevention 

Morbidity and Mortality Weekly Report 

Weekly! Vol. 60 ! No, 1 January 14,2011 

Contraceptive Methods Available to Patients of Office-Based Physicians 

and Title X Clinics - United States, 2009-2010 

Unintended pregnancies, which accounted for an estimated 

49% of all pregnancies in the United States in 2001, more often 

are associated with adverse outcomes for both mother and child 

than are inrellded pregnancies (1). In 2008, an esrimated 36 

million U.S. women of reproductive age-were in need offamiiy 

planning services because they were sexually active, ahle to get 

pregnant, and nor trying to get pregnant; this represented a 6% 

increase from y~ar 2000 estimates (2). To assess the provision 

of various reversible contraceptive methods by U.S family planning providers, CDC mailed a survey on contraceptive provision ro random samples of 2,000 offke-based physicians and 

2,000 federally funded Title X clinics. This repon summarizes 

those results, which indicated that a greater proportion of Tide 

X clinic providers thall onlee-based physicians offered on-site 

availability of a number of methods, including injectable 

depot medroxyprogesterone acetate (DMPA) (96.6% versus 

60.9%) and combined oral contraceptive pills (92.1 % versus 

48.8%), However, a greater proportion of office~based physicians than Tide X clinic providers reponed on~~ire availability 

of [he levonorgestrd-releasing intrauterine device (LNG~IUD) 

(56.4% versus 46,6%), less than maximal use oflong~acting. 

rever:-.iblc contraceptive method.~ (LARCs), including IUDs 

and contracepdve implants, might be a contributing faeror 

to high unintended pregnancy fafeS in the United States (3). 

Improving contraceptive delivery by increasing on-site availability in physicians' oIllces and clinics of a range ofcontraceptive methods, including LARe:;, might increase contraceptive 

use and reduce rates of unintended pregnancy. 

From December 2009 to March 2010, CDC conducted a 

mailed survey on contraceptive provision to random samples 

of 2,000 office~based physicians and 2,000 federally funded 

Title X clinics. Office-based physicians were sampled from the 

American Medical Association (AMA) Physician Masterflle, 

which includes information on AMA member and nonmember 

physicians residing in the United Srates and select territories, 

Three primary specialties were included: obstetrics/gynecology, family medicine, and adolescent medicine. Tide Xclinics, 

which can represent a range of provider agencies (e.g., puhlic 

health departments, Planned Parenthood affiliates, hospitals, 

and community health centers), were sampled randomly 

from a current directory of Title X clinics maintained by the 

U.S. Department of Health and Human Services' Office of 

Population Anairs, Office-based physicians and one provider 

from each Tide X clinic were eligihle to participate if they 

provided family planning services"" to women of reprodunive 

age at least twice per week 

The survey included ques(ions on comraceptive method 

availability and determined whecher specific reversible contraceptive methods were I) direcdy available to clients on~ 

site. 2) available by prescription (or recommendation, for 

condoms), 3) available by referral, or 4) not available. For 

providers reporting multiple caregories of availability for a 

single method (e.g., on-site and by prescription), availability 

purpo'>t>orher Visit wa!> no[(oJ1[raceplion, 

INSIDE 

5 Local Health Department Costs Associated with 

Hc<,ponse to a School-BClsed Pertus"i.., Outbreak 

'- Omaha, Nebraska, Septembrr·-Novembcf 2008 

10 Progress in IrmnUllizatlon InforlTldtlon Systems 

- United States, 2009 

13 Updated Recommendations for Usc ofTetanm 

Toxoid, Redu(Pci Diphtheria TOXOid and I\n>llLJI.1f 

PertussIs (Tdap) Vaccine from the Advisory 

Committee on Immunization Practices, 2010 

16 Notes from the FieJd: Congenital Lymphocytic 

Choriomeningnis New York 

17 Nonces to Readrrs 

19 QUlckStats 

U,S, D@partm@ntofH@alth and Human S@rvic@s 

Centers for Disease Control and Prevention 
227 


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228 


75050.181

Morbidity and Mortality Weekly Heport 

TABLE. Availability of reversible contraceptive methods to patients of office-based physicians and Title X dinic providers* - United States, 

2009-2010t 

DirectlYllvlliiable Available by Available by referral 

on-site prescription' to other providers Not available 

Contraceptive method§ % % % % 

Levonorgestrel-releasing intrauterine device (LNG-IUD; Mirenal 

Office·based phySicians 56.4 16.2 24.6 1.9 

Title X clinics 46.6 96 ]7.9 3.8 

Copperintrlluterine device (ParaGard) 

Office-based phYSicians 5].5 15.8 25.2 2.8 

Title X clmics 59.7 74 29.6 2.0 

Implant (lmplanon) 

Office·based physICIans 32.0 13.2 40.0 8.0 

Title X clinics 35.7 6.7 445 9.2 

Depot medroxyprogesterone acetate (DMPA; Depo-Provera) 

Office·based physicians 60.9 36.4 1.6 0.2 

Title X clinics 96,6 2.6 0.2 0.2 

Combined oral contraceptives 

Office-based physioans 48.8 50A 0.0 0.2 

Title Xclimcs 92.1 6.9 0.2 0.2 

Progestin-only oral contraceptives 

OffICe-based physicians 24.9 70.9 1.4 1.1 

Title X clinics 78.3 17.4 1.1 1.4 

Patch (Ortho Evra) 

Office-based physicians 29.1 60.5 1.7 4.9 

Tltl~XclinlCs 56.9 29,0 7.5 4.8 

Vaginal ring (NuvaRing) 

Office·based physiClans 43.0 52.3 3.3 0.5 

Title X clinics 58J 28.9 8.0 35 

Male condom 

Office-based physiCians 26.3 60,8 2.4 5.5 

Title X clinks 95.6 2.9 0.3 0.4 

Female condom 

Offlce·based phYSicians 7.1 47.9 6.5 17.8 

Tit!eX c!inics 49.4 24.9 6.7 9.9 

'" Total"" 2,003; office-based physicians", 635;Tiile X clinic provIders"" 1,368. 

t Percentages might not sum to 100% because of missing or "not applicable" responses. 

~ ClaSSifications ofcontraceptive method a .... ailabilitywere mutually exClusi .... e. 

1\ Male and female condoms were available by recommendation. 

typical use than user-dependent methods (e.g., condoms and 

oral contraceplives) because they require only a single act of 

insertion for long-term use and eliminate the influence of 

adherence on effectiveness. Access to a range ofcomraceplive 

methoJs, induding LARes. might increase contraceptive use 

bur might be impeded by COSt, provider knowledge and rraining, or other facwrs (4). 

Results of this national survey indicate variation in the availability of specifk contraceptive methods by method rype and 

by clinic.ll setting, with a higber proponion of Title X dinic 

providers than ornce-based physicians offering a range of 

contraceptive methods on-site. Oral contraceptives, the most 

commonly llsed reversible contraceptive method among U.S. 

women (5), were available on-site from ne'Jrly an Title X clinic 

providers, whereas approximately half of office-based physicians haJ them available on-site and halfhad them available by 

prescription, Male condoms, which provide protection agaiJlSt 

both unintended prt'gnancy and sexually transmitted infections, were available on-site in nearly all Title X clinics but only 

in one quarter of physicians' orfices. Availability of LARes, 

which n:guire insertion by a trained health-care provider, 

often depended on referral to other providers. Approximately 

one quarter of office-based physicians and nearly one third 

of Tide X clinic providers referred clients to other providers 

for IUDs, and both often referred clients seeking implants to 

other providers, which could impeJe use of these contraceptive methods. 

M.'vlWI{ ! J,);1Uary 14, 2011 " Vol. 60 ( No.1 
229 


75050.182

This is believed to be the only national survey to report 011-

of specific contracepti"ve methods apan from 

ods might rdlen variation in such as the reimbursable 

t.:OSt for each method LARes) (71, dinic or practice 

health department versus 

to at least three limiuvt.'ydid not asO,'nain f(';lSOns for certain contraceptive methods 

being unavailable. Fina!!y, although Title X providers 

indicate that mNhods art available on-site, 

methods (cg., are not available consistendy to all 

clients because of high costs. Clinics or practices to 

offer less expensive methods to some persons to have to 

s('rvt a greater number of cliellts (7). 
230 


75050.183

MorblUlty anu Mortullty\N"f'kly Report 

Local Health Department Costs Associated with Response to a School-Based 

Pertussis Outbreak - Omaha, Nebraska, September-November 2008 

Pertussis is a highly infectious, vaccine-prevemable respira-

[Ory i!lness. \'7ith the advent of a vaccine, case numbers Fell 

in the United States from a bigh of265,269 in 1934 (1) [0 

a low of 1,010 cases in 1976, but tben resurged to 25,827 

in 2004. During 2004-2008, the average was 18,J(il cases 

per year (2,3). Close contacts of persons with pcnussis are at 

increased risk for developing infection and are recommended 

to receive preventive antibiotics (4) for tWO reasons: l) the 

illness can be debilitaring, with cough lasting several weeks 

and sometimes being severe enough to cause urinary incontinence, rib fracture, or other complications; and 2) the illness 

can be fatal in infants; it caused an average of 17 deaths each 

year during 2002-2006 (3). During pertussis outbreaks, the 

resources needed [() idenrifY and treat contacts can strain 

local public health resources (5). The Douglas County Health 

Departmenl (DCHD) in Omaha, Nebraska, responded to a 

school-based pertussis outbreak with 26 cases occurring in late 

2008. To assess the COStS incurred by a local health department 

responding to such an outbreak, DCHD and CDC evaluated 

the total resources used by DCHD. This repon describes the 

results of that analysis, which indicated that 1) staff members 

reported 1,032 person-hours spent responding to the outbreak, 

and 2) the total cost of outbreak response, including overhead, 

labor, trave!, and other COStS, was $52,131 (measured in 2008 

U.S. dollars). The majority of costS (59%) occurred during 

an intensive 10-day period, when most oflhe comaCl tracing 

and prophylaxis recommendations were made. The elevated 

incidence of pertussis and the burden of response placed on 

health departments warrants exploring the impaC[ of a!terna~ 

rive response and chemoprophylaxis strategies. 

On September 26, 2008, DCHO was nocified of a student, 

aged 5 years, with a diagnosis of pertussis. The student attended 

a private school with approximately 600 other students in 

kindergarten through 12th grade. DCHD followed pertussis 

response protocols in which close concacts were identifled and 

contacted. In keeping with CDC pertussis response guidelines, 

DCHD recommended chemoprophylaxis [or close contacts, 

defined as persons who had direct face-ta-face contact with 

an ill person, or shared a confined space with an ill person for 

more than I hour, or had direct contact with respiratory, oral, 

or nasal secretions from a symptomatic person (4). DCHD also 

recommended that [he school exclude persons with a cough 

from school until they were evaluated by a doctor. After four 

additional cases were reponed in the school on October 28, 

DCHD further recommended that students with cough be 

excluded from school until evaluated by a physician and either 

treatcd or determined not to have pertussis. 

On November 17, CDC investigators were deployed at the 

reque::.t ofDCHD to assist with the response and data analysis 

and assess the cost to the heahh department for its response. 

Cost data were obtained in a three-step process. First, DCHD 

management personnel were interviewed (0 determine the 

temporal course of the outbreak and response, the number of 

staFf members involved in the response, and the health department's operating costs, including labor and overhead. Second, 

a survey instrumem was created and distributed to DCHD 

personnel to a~sess time spent performing various activities 

during the outbreak response. The survey was volumary and 

de-idenrilled. Each survey was confidentially matched with 

[he corresponding salary and fringe benefit rate obtained 

from accounting staff. Third, cost figures were calculated by 

multiplying hours worked by salary plus tbe fringe benefit rate, 

then adding travel and overhead expenses. '" Cost was summed 

by operating division and compared with the division budget 

to determine the proportion of the (Oral operating budget 

required for tbis outbreak response. 

To assess the cost to DCHD during different phases of 

the response, data were split into three periods: 1) the initial 

period, from the first case notification to the declaration of the 

outbreak (Septt:mber 26-0ctober 26); 2) the outbreak period, 

when most of the cases were reported and DCHD worked 

to update control measures (October 27-November 5); and 

3) the follow-up and reporting period, when DCHD implemented new control measures and ob~crved reduced incidence 

of disease (November 6-2 t). Aho, cost was separared by Four 

DCHD divisions involved in the outhreak: Administration, 

Epidemiology, Data, and Media Rdations. t Finally, labor 

cost was calculared by period and division as a percentage of 

the total DCHD labor budget. Labor COSt as a proportion of 

labor budgt't was used to determine how many personnel in 

each division worked on the outbreak during that period. For 

example, a percentage of 100% would mean that the division 

spent all available personnel resources on the outbreak. 

• AmOf{Jlcd from an annual rate per full-time employee by the numner of hours 

worked on the outhn:ak in the following lategories: information (<:chno!ogy, 

MMW'~ I3n(,<lry 14,201; ,I Vol. 60 ! No. 1 
231 


75050.184

To classify staff time, [he survey capmred several time categories, including investigation, communication, decisions 

and implementation, and "other." The categories were derived 

from interviews with health department staff members before 

conducting [he survey. Investigation included all activities 

related to idemifying contacts {comaet tracing), following up 

wirh pocem!al dose camacts, analysis of epidemiologic data, 

other investigation, and record keeping. Communication 

time was divided among physicians, parents, school, and the 

media. Decisions and implementation were activities related 

to coordination of control measures during the outbreak. 

Specifically, these involved meetings to discuss how to identil)r 

dose cancans, whether or not (0 exclude anyone with a cough 

from school, and "other."The "other" category induded meetings with parents of school children and travel time. 

In total, 261ahoratory~conflrmed pertussis cases occurred (in 

24 students and tWO staff members) (Figure). Two of rhe 26 

cases were idemifl.ed after (he survey was conducted, and the 

costs associated with them wefe not included in the analysis. 

DCHD recommended chemoprophylaxis for 148 dose contacts. DCHD staff members contributed 1,031 person-hours 

to control the oLHbreak during the period observed (Table l). 

Outbreak cost totaled $52,131, or approximately $2,172 

per case, which was nearly 1 % of DCHD's annual program 

budget, exduding grams and external funding sources. Each 

case of pertussis required nearly 42 regular person-hours and 

approximately I hour of overtime. The time spent investigating a pertussis case included tracing of all close co mans, and 

each pertussis case ted to an average of 21 teiephone calls and 

chemoprophylaxis recommendations for six dose contacts 

(range: zero to 70), DCHD did not pay for antibiotics or 

laboratory testing. 

Of the UH;}I COSt, the largest components were investigation ... 

(,17.2°Jh) and decisions and imp!ememadon (22.9%), Resource 

use was most intensive during the ourbrcak period ror all divisions 

(Table 2). The most heavily affected divisions were Epidemiology 

(156% of budge led hours), Administration (46%), and Media 

Relations (41 %).§The Epidemiology Division's 156% resource 

use reflected overtime and compensation hours worked during 

the outbreak period. In total, starf members reported 28 hours 

of overtime with the largest component of overtime allocated 

to investigation~rdated activities. 

Reported by 

AM Pour, PhD, CD Allensworth, MPH, Douglas County 

Health Dept, Omaha, Nebraska. TA Clark, M D, j L Liang, 

DVM, P Cullison Bonner, MD, Diu of Bacterial Diseases, 

ML Messonnier, PhD, GR Beeler AS4)" PhD, Prevention 

l:.lJeail)eness Fellow, immunizatiDn Sues Div, National Center 

for ImmunizatiDn and Rrspiratory Diseases, (1)C. 

Editorial Note 

This pertussis ourbreak in Omaha in 2008 was resource~ 

imensive and expensive for the local health depanment, with 

total COSfS estimated at $52,000 and 1,000 hours of sta~T time 

committed (0 the oU[break. Beyond the direct costs measured 

by the survey, the outbreak affected other projects and public 

health priori des of DCHD. Many staff memhers stopped 

working on [heir previous projects to work on the outbreak; 

although most staff members were abJe to return and complete 

FIGURE. Number of pertuss;is cases IN :;;:: 26*), by date reported - Omaha, Nebraska. September-November 2008 

. B s 

o 

o 

z 

15 

Implementation, Outbreak period foilow"up, and reporting Initial response period (9/26-10126) (10/27-1l/S) penod (11/6-11/21) 

.---------------~--------------.~ ~.~------.~ .. --~----------. First case reported 

'""hOli91261 

20 25 5," 30 

I 10 15 

Oct 

Date of report 

10 15 20 No, 

* Two cases identified after November 21 were excluded from the cost analysis because they were reported after the survey completion date. 

MMWR )JI1lWY 14,2011 .' VDL 60 iNc.! 
232 


75050.185

Department, Omaha, Nebraska, SeptemberHours worked Cost (S) by actlvityt Mean (ost ($) per hour Total 

Regular Overtime Regu!,u Overtime Regular Overtime Cost ($) % of total cost 

118.6 3.0 4.324 34 44 4,458 9.6 

1.0 1,950 44 34 44 1,9514 3.8 

155.0 3.0 8,024 165 52 55 8,189 15.7 

18.Q 4.0 557 " 51 761 1.5 

111.8 1.7 3,882 87 35 52 3,968 7.6 

Subtotal 471.3 12.7 18,737 633 19,370 37.2 

Communication 

Communications with schoo! 80.\ 0,5 2.635 39 7S 2,674 5.1 

41.8 1,459 1,459 2.8 

15.5 3.0 512 33 74 734 1.4 

85.5 4.8 3,150 221 37 46 3,372 6.5 

Subtotal 222.8 8.3 7,756 482 8,238 15.8 

Decisions and implementation 

IOV 4,375 42 4,375 8.4 

G8.5 1.5 3,584 111 41 74 3,695 7.1 

96.2 3,860 40 3,86D 7.4 

Subtotal 288,4 1.5 11,819 111 11,930 22.9 

Other 

MN:ting with parents (It school 5.0 611 377 39 988 1.9 

Travel 0.5 229 39 42 78 268 0.5 

Subtotal 21.0 840 416 1.256 2.4 

Total1aborcosts 1,003.5 20.0 39,152 1,642 40,794 78.3 

Non-labor costs 

54 0.1 

1,9Q5 3.7 

9,379 18.0 

Total non-labor costs 11,337 21.7 

52,131 100.0 
233 


75050.186

Morbidity and Mortdllty Wef:kly Hepon 

TABLE 2. Labor costs· associated with a pertussis outbreak, by division and response period - Douglas County Health Department, Omaha, 

Nebraska, September-December 2008 

Implementation, Total response 

Initial response Outbreak response follow·up, and reporting period 

Division period (9/26-1 0/26) period {lOf27-11/5} period (11/6-11/21) {9/26-11/21} 

Administration (three employees) 

labor hours 1.9 50.9 17,3 70,0 

Labor cost ($) 126 3,916 954 4,997 

Available labor budget IS) 12,159 8,441 12,662 43,263 

% available labor budget 46 8 12 

Epidemiology (four employees)t 

Labor hours 95.4 513.3 279.1 887.8 

Laborcost(S) 2,960 24,931 15,441 43,332 

Available labor budget ($) 63,533 16,011 36,304 115,848 

% available labor budget 5 156 43 37 

Data Ithreeemployeesl 

Labor hours 6.2 6.3 6.2 18.7 

Labor cost ($) 334 334 344 1,012 

Available labor budget (S) 17,152 6,534 9,801 33,488 

% avallable labor budget 

Media relations and health advisor (two employees) 

Labor hours 12.4 30.3 12.4 55.0 

Laborcost{$) 345 879 345 1,568 

Available labor budget IS) 5,678 2,163 3,245 11,086 

% available labor budget 6 41 11 14 

Total health department 

Labor hours 115.8 600.8 314.9 1031.5 

Laborcost (S) 3,764 30,060 17,084 50,909 

Available labor budget (S) 108,523 33,150 62,013 203,686 

% availab!e labor budget 35 90] 27.S 25.0 

• All costs measuft'd III 2008 U.s. dollars 

t Eight staff members worked In the Epldemio!ogy Division. However, four members were absent during the outbreak phase for a training program. Therefore, only 

the hours for fOUf staff members were used in this analysis. 

Within these two components, data analysis, tracing contacts, 

and determining the appropriate close comacr definition 

required the most time ofhealrh department personnel. Other 

health departments have employed guidelines that target 

tracing and chemoprophylaxis of contacts (7). Adoption of 

such targeted chemoprophylaxis strategies might streamline 

notification procedures and result in more efficient and com~ 

plere notification of contacts at risk for severe or fatal disease, 

including infants (7). However. the effectiveness of targeted 

versus wider chemoprophylaxis remains to be determined. 

The findings in this report are subject to at least three 

limirations. First, this report focused on {he direct puhlic cose 

incurred by a local health department in response to a pertussis 

outbreak. The private costs of pertussis. including those costs 

borne by patients, persons recommended chemoprophylaxis, 

health-care providers, or institutions, were not analyzed in 

this study. However, private costs of penussis are weI! studied 

elsewhere and can be suhstantial (8,9). Second, although this 

repon measured the total delay in projects resulting from the 

outbreak, it did nOl measure the type or number of projects 

delayed. Future cost analyses also should measure the "opporrunitycost" or outbreaks in more detail. Finally, although these 

,\1MV\iR .' JJll\iJry \4,2011 ! Vol 6() No.1 

data offer a picture of public health cost when responding to 

an outbreak, (hey only reflect the resource use of one health 

department and might differ for other health departments. For 

example, health departments that pay for laboratory testing and 

antibiotic courses for patients would incur additional costs. 

Costs of response to pertussis outbreaks can be sub~t3ntiaL 

Investigations and developing recommendations were the 

most resource-intensive aspects of this outbreak for the local 

health department. The elevated incidence of pertussis and 

tbe burdt:n of response placed on heai[h dcpanmt:fHS warrams 

exploring the impact of alternative response and chemoprophylaxis strategies. 

Acknowledgments 

This report is bJsed, in part, on contributions by T Kelso and 

other staff members of the Douglas Cou nty Health Dt:'pr, Omaha, 

Nebraska; J Llko, MD, and P Cieslak, MO. Oregon Public Health 

Dept; and C Thomas, DVM, and H Wu, MD, Diy of Baneria! 

Diseases, NJ.tionai Center for fmmunizadon and Respiratory 

Diseases, CDC. 
234 


75050.187

iv10rbldlly and Mortdhty Weekly Report 

References 

:0.MWR / j,"lmldry:4.2011 'VoL60 / No.1 
235 


75050.188

Morbidity ,md MortdlltyWeekly Rf'pon 

Progress in Immunization Information Systems - United States, 2009 

An immunization information system (IIS) is a confidential, computerized, population-based system that collects and 

consolidates vaccination data from vaccine providers and 

provides tools {or designing and sustaining effective immunization strategies at the provider and program levels. Among 

the capabilities of an lIS are (he capacity to inform vaccine 

providers of upcoming patient vaccination needs; generale 

vaccination coverage reports, parient reminders, or recalls for 

past due vaccinations; and interoperate with electronic he:llth 

record (EHR) systems. In 2010, the Task Force on Community 

Preventive Services recommended that immunization information systems be used to increase vaccination coverage after 

showing strong evidence of their effectiveness (1). A Heahhy 

People 2020 objective is (0 increase to 95% the percentage of 

children aged <6 years whose immunizadon records are housed 

in a fully operational liS (2), Ti) assess lIS progress toward 

meeting the Healthy People objective, CDC analyz~d data from 

the 2009 Immunization Information Systems Annual Report 

(IISAR) survey (completed by 53 of 56 federal grantees with 

IIS sites), which indicated that 77% of all U.S. children aged 

<6 years participated in an IrS, an increase from 75% in 2008 

(3). In addiciol1, 59% of grantees reported being able to send 

and receive vaccination data using Health Level Seven (HL7) 

messaging srandards, and 73% reported that some vaccine 

providers with EHR systems in their geographic area were 

providing vaccinadon data directly w an lIS from EHRs. 

Enhancing lIS and EHR with standards such as HL7 wi!! 

provide greater consistency in dala exchange and likely help 

to improve the quality and timeliness of lIS dara. 

To monitor progress toward IlS program objectives, CDC 

annually survey.s 56 115 grantees (50 states, flve ciries,'" and 

the District of Columbia) via IISAR. In 2009, 53 (95%) of 

the 56 grantees completed the IISAR survey (Kentucky and 

Massachusetts Wi..'re implementing a new IIS and did not have 

data to repon; New Hampshire elected not (0 implement an 

IIS). The self~adminislered survey asks about vaccination coverage for aU age groups, provider p;:micipation in US, and lIS 

functionality (e.g., managing vaccine inventory in the vaccine 

provider office, EHR communication \vith IlS, and conducting 

vaccine provider assessments using lIS). 

Participation in an 115 

The percentage of children aged <6 years whose immunization records were housed in a fully operational lIS was 

* Chicago, lI1inoi~; HOllSwn and San Antonio. Tc)(~ . .,; New York, ;-""cw York; and 

Philadelphia. Penn~ylv,lI1ja< 

10 1\~iV\\vR i J;)lllhlry l~, 2011 / VOl. ()O .' 1\;0.1 

calculated for each of the 56 grantees. The calculations were 

made by dividing the number of children participating in an TIS 

by the 2009 midyear U.S. Census projection of the population 

of children aged <6 years (or that grantee geographic area. 

In 2009, of the 53 responding grantees, 23 (43%) reported 

that >950;() of children aged <6 years in their geographic area 

were participating in an lIS. Ten (19%) of the 53 reported 

participation ranging from 80% to 94% (Figure) (3). Overall 

in the United States, approximately 77% of children aged <6 

years (18.4 million) participated in an lIS in 2009 (a small but 

statistically significant inctease from 75% in 2008 [3]). 

115 Adherence to Standards 

In 2001, the Technical Working Group of the National 

Immunization Program established 12 st.andards regarding 

the minimum technical functions an IIS should implement 

(4,5). Three of these standards were considered for this report: 

1) electronically store data on all J 7 core data elements recommended by the National Vaccine Advisory Comminee 

(NVAC), 2) receive and process immunization information 

within I month of vaccine administration, and 3) exchange 

immunization r~cords using HL7 standards, which allow for 

efficienr transfer of records and data de-duplication within 

systems (6). To assess adherence to these three standards, data 

were analyzed from 51 of tbe 56 grantees (Chicago, Houston, 

Kentucky, Massachusetts, and New Hampshire were excluded) 

in 2009 and compared with data from 52 grantees in 2008. 

In 2009, six of the 17 NVAC-recommended core data elements (i.e., t1rs[ name, last name, birth date, sex, vaccine type, 

and vaccination d;:tte) had completion rates 0[;,:97%) for children aged <6 years, a result similar to findings in 2008 Crable" 

In addition, nine of the remaining 11 core data elements 

showed increase!> in completion rates from 2008 to 2009. 

Regarding the other standards, 70% of lIS data were received 

and processed within 1 month of vaccine adminislration, an 

increase from 67% in 2008 (3). Also, 30 (59%) of the 5 I grantees reported tbe ability to send and receive HL7 mes~ages, Jour 

(8%) grantees reported partial ability to meet HL7 capability 

by either sending or receiving messages, and 17 (3Y}h) grantees 

reponed having no HL7 functionality. 

In 2009, 37 (73%) of 51 grantce~ reponed that at least some 

vaccine provider-site EHR systems were providing immuniurian data directly to an liS. A tOtal of 3,618 provider-site 

EHRsystems provided immunization data directly m a grantee 

IIS, compared with 1,818 in 2008. Of these 3,618 systems, 

2.797 (77%) were among the 33 grantees with >80% child 

participation. 
236 


75050.189

FIGURE. Percentage of children aged <6 years participating in a 

grantee immunization inform;;ltion system 50 states, five dties, 

and District of Columbia, 2009 

• Grantee is implementing a new liS project 

Note 

Despite some progress in increasing the proportion of children <6 whose Immuni7:.ui()n nxords are hOtl5t'd 

remain to successful IIS implementation, 

resource costs 

can help 1) reduce time (i-om vaccine administration to 

inclusion of data in an IIS record, 2) [educe dual data 

by vaC(lne providers became vaccination data ,,,,ill only 

cntcred into the EH.R ,md then the IrS using 

HL7 messaging, and 3) increase or imm.unizarion ill formation (core data elements and vaccination datal by 

add.ing data not collected . 

Provisions of the Health 

and Economic Health (HITECH) Act (7) an.' intended to 

accelerate adoption of nationally certified 

TABLE Percentage of core data elements'" that were completet In 

immunization information sys.tem (lIS) records for children aged <:6 

years. - United States, 2008 and 2009 

2008 2009 

\52grantees)~~ 

Core data e!em~nt 

100 

Middle name 68 69 +1 

Last name 100 100 a Birthd"te 100 100 

SE.'X 9} 97 

[lirthstate 44 46 12 

Birth country 28 28 0 

Mother's Ilfst n<lrne 67 71 +4 

Mother's malden name SO 55 

Mother's last name 59 63 

Va(clnetype> 08 100 

Vaccin(>manufatture 40 50 +10 

Va((lnationdate 100 +2 
237 


75050.190

The J.fC subject to at least two 

guidance on to 

to IL~ [:;ranrces the data 

\Vert' $e!f~rep()rted and selr .. validatt~d< 

Second, bl..'G1USe some of tho;;: 56 gr;U1tCes did not n-'f)()ft dat<l 

during the studied, the nationwide !IS participation 

r:ltcs for aged <6 years might be undcn::stimatcd or 

overestimated. 

Findings from the Taskf()fcc on Community PreYCntlvt' 

S .... rvices reviL:w or the Iitcranm.' 1I,1"I-T highlighted 

be c!leerivc in increasingvaccina1 ion 

(I). ITS offers capahilities such as parkm remlndt>r and 

feedhack, USe of data 

1) 

timeliness, and comp!etene::.s can improve the quality of IlSdata available for other 

G. 

9. 
238 


75050.191

Morbidity and Mortd(nyWf"f"kly Report 

Updated Recommendations for Use ofTetanus Toxoid, Reduced Diphtheria 

Toxoid and Acellular Pertussis (Tdap) Vaccine from the Advisory Committee 

on Immunization Practices, 2010 

Despite sustained high COVCTJge for childhood pertussis 

vaccination, pertussis remains poorly concrolled in (he United 

States. A total of 16,858 pertussis cases and l2 infant deaths 

were reponed in 2009 (1; cnc, unpublished dara, 2009), 

Although 2005 recommendations by [he Advisory Committee 

on Immuniution Practices (ACIP) called for vaccination with 

,etanus toxoid, reduced diphtheria toxoid and acellular perrussis (Tdap) for adolescents and adults to improve immunity 

against penussis, Tdap coverage is 56% among adolescents 

and <G% among adults (2,3). In October 2010, ACIP recommended expanded use of Tdap, This repon provides the 

updated recommendations, summarizes the safety and effectiveness dara considered by AClp, and provides guidance for 

implementing [he recommendations. 

ACIP recommends a single Tdap dose for persons aged 11 

through 18 years who have completed the recommended childhood diphtheria and tetanus toxoids and pertussis/diphtheria 

and tecanus toxoids and acellular pertussis (DTP/DTaP) vaccination series and for adults aged 19 through 64 years {4,5), 

Two Tdap vaccines are available in the United States. Boostrix 

(GlaxoSmithKline Biologicals, Rixensart. Belgium) is licensed 

for use in persons aged 10 through 64 years, and Adacel (Sanofi 

Pasteur, Toromo, Canada) is licensed for use in persons aged 

J 1 through 64 years. Both Tdap products ,1rc licensed for 

use at an interval of at least 5 years between (he tetanus and 

diphtheria toxoids {Td) and T dap dose. On October 27, 201 0, 

ACIP approved the following additional recomm.endations: 

I) use ofT dap regardless of interval since the last Ietanus- or 

diphtheria-toxoid comaining vaccine, 2) use ofT dap in certain 

adults aged 65 years and older, and 3) use ofTdap in undervaccinated children aged 7 rhrough 10 years. 

The Pertussis Vaccines Working Group of ACIP reviewed 

published and unpublished Tdap immunogeniclry and safety 

data from clinical trials and observational swdies on use or T dap. The Working Group also considered the epidemiolob'Y 

of penllssis, provider and program feedback, and data on the 

barriers to receipt ofT dap. The Working Group [hen presented 

policy options for consideration to the full ACIP. These additional recommendations are intended to remove identirled 

barriers and programmatic gaps that comribure to suboprimal 

vaccination coverage. An important barrier that limited vaccination of persons with Tdap was unknown history ofTd 

booster. Programmatic gaps included lack of a licensed T dap 

vaccine for children aged 7 through lO years and adults aged 

65 years and older. In ligbt of the recent increase of pcrrussis in 

the United Stares, the additional recommendations arc made 

to facilitate use ofTdap to reduce the hurden of disease and 

fisk for transmission to infants (Box). 

Timing of Tdap Following Td 

Safety. When Tdap was licensed in 2005, the safety of 

administering a booster dose ofTdap at intervals <5 year!> after 

T d or pediatric DTP/DTaP had not been studied in adults. 

However, evaluations in children and adolescents suggested 

that the safetY of intervals as short a:\ 18 months was acceptable 

(6). Rates of local and systemic reactions afterTdap vaccination 

in adults were lower than or comparable [0 rate$ in adolescents 

during U.s. prdicensure trials; therefore, the safety of using 

intervals as short as 2 years becween Td and Tdap in adults 

was inferred (4). 

Additional data on the safety of administering Tdap <5 

vears afterTd are now available. Two studies were conducted 

:""ith 387 persons aged 18 through 7G years who received a 

Tdap or combined Tdap-inactivated polio vaccine (TdapIPV) vaccination ehher within 21 days, or <2 years following 

a previom Td-containing vaccine (7,8). Tdap-IPV vaccine is 

not licensed in the United States. In both studies, immediate 

or shon-term adverse events (e.g" 30 minures to 2 weeks) after 

receipt of T dap or Tdap-IPV were examined. The majority 

of these evelHS were limited to local reactions, including pain 

(68%,~83%), erythema (20%~25%), and swelling (l9%-.38%) 

(7,8). Serious adverse events reb ted to the receipt oFT dap or 

Tdap-IPV shortly after Td or Td-IPV vaccinadons did not 

occur. However, the number of subjecrs in these scudies was 

small and does not exclude the potential for rare, but serious, 

adverse events. 

Guidance for use. ACIP recommends that pertussis vaccination, when indicated, should not he delayed and that 

Tdap should be administered regardless of interval since the 

last tetanus or diphtheria roxoid-containing vaccine. ACIP 

concluded that while longer intervals betwecn Td and Tdap 

vaccination could decrease tbe occurrence of [0 cal reactions, the 

beneflts of protection against pertussis outweigh the potential 

risk for adverse events. 

Adults Aged 65 Years and Older 

Unpublished data from trials for Adacel (N = 1,170) and 

Boostrix (N ::: 1,104) on the safecy and immunogenicity ofT dap 

in adults aged 61 years and older who reccived vaccine were 

provided to ACIP by Sanofi Pasteur and GlaxoSmithKline. 

,\1MWR " )tonu,;ry 14. 2lJl" VOl (JO i NO.1 
239 


75050.192

MorbidIty and ,~lortiJllty VVeek!y Repon 

BOX. Summary of updated recommendations. for use of tetanus 

toxoid, reduced diphtheria toxoid and acellular pertussis (Tdap) 

vaccine - Advisory Committee on Immunization Practices, 2010 

General Recommendations 

For roUtine use, adolescents aged II through 18 years 

who have completed the recommended childhood diphtheria and (etanus roxoids and pertussis/diphtheria and 

tetanus toxoids and acellular pertussis (DTP/DTaP) 

vaccination series and adults aged 19 through 64 years 

should receive a single dose ofTdap. Adolescents should 

preferably receive Tdap at the 11 to 12 year-old preventive 

health-care visit. 

Timing ofTdap 

• Can be administered regardless ofimerva! since the 

last tetanus- or diphtheria-toxoid containing vaccine. 

Adults Aged 65 years and Older 

• Those who have or anticipate having dose contact 

with an inf.'lnt aged less than 12 months should receive a single dose ofTdap. 

• Other aduhs ages 65 years and older may be givrn a 

single dose ofTdap. 

Children Aged 7 Through 10 Year. 

• Those not fully vaccinated against pertussis* and for 

whom no contraindication La pertussis vaccine exists 

should receive a single dose ofTdap. 

• Those never vaccinated against tetallUS, diphtheria, 

or pertussis or who have unknown vaccination status 

should receive a series of three vacci nations containing 

tetanus and diphtheria toxoids, The first of these three 

doses should beTdap, 

• Fully vJCCln;ued is defined as 5 dOM:5 of DTaP or 4 doses of DTaP if the 

fourrh do<;~ W,lS ~ldmjnistered on or afrer rhe fourth birthday. 

Safety. Por both Tdap vaccines, the frequency and severity or adverse events in persons aged 65 years and older were 

comparable to those in persons aged less than 65 years. No 

increase in local or generali7.ed reactions in Tdap recipients was 

observed, compared with persons who received Td. No serious 

adverse events were considered related to vaccination. 

ACIP reviewed data on vaccine-related adverse events from 

[he Vaccine Adverse Event Reporting System (VAERS). VAERS 

is a passive surveillance system jointly administered by CDC 

and the Food and Drug Administration that accepts reports 

from vaccine manufacturers, health-care providers, and vaccine 

recipients for vaccine safety. VAERS can he prone to overrcporting or underreponing and inconsistency in dle quality and 

completeness of repons. During Septemher 2005-September 

2010, a total of 243 VAERS reports were received regarding 

r-,4M .... VR " JanU,1fY 14.20\1 < Vol 60 / No. I 

adults aged 65 years and older administered Tdap, Ollt of 

10,9Rl total VAERS reports on Tdap among redpiems of 

all ages (CDC, unpublished data, 2010). Of the 243 repons 

regarding aduhs aged 65 years and older, 232 (96%) were 

nonseriolls, The most frequent adverse events after T dap were 

local reactions, comprising 37% of all events. Eleven serious 

evell[:' were reponed, including two deaths among persons 

with multiple underlying conditions. Although VAERS cannot 

assess causality, after review of daw, if is unlikely the deaths 

were related to vaccine receipt. Postmarketing VAERS data 

also suggest that Tdap vaccine safety in adults aged 65 years 

and older is comparable to that ofTd vaccine. Because Tdap 

is nor licensed for use in this age group, comparisons between 

these reports and other repons need to be interpreted with 

caution, 

Immunogenicity. Both Tdap vaccines showed that immune 

responses to diphtheria and tetanus toxoids were non inferior 

to responses produced byTd, In horh Tdap vaccines, immune 

responses were observed ro tbe pertussis antigens. For Boostrix, 

immune responses to pertussis antigens (pertussis toxin [PT], 

Glamentous hemagglutinin [FHA], and pertactin rPRNJ) 

were noninferior to those observed following a 3-dose primary 

pertussis vaccination series, as defined by (he Vaccines and 

Related Biological Products Advisory Committee (VRRPAC) 

(9). For Adacel, immune responses [0 all penussis antigens (PT, 

FHA, PRN, and fimbriae [FIM]) occurred (4,llO 15,I-fold 

geometric mean concentration increases). ACIP concluded 

that both Tdap vaccines would provide pertussis protection 

in persons aged 65 years and older. 

Guidance for use. ACIP recommends that adults aged 65 

years and older (e.g., grandparents, child-care providers, and 

health-care practitioners) who have or who anticipate hav~ 

lng close contaer with an infam less than l2 months of age 

and who previously have nor received Tdap should receive a 

single dose ofTdap to protect against pertussis and reduce the 

likelihood of transmission. For other adults aged 65 years and 

older, a single dose ofTdap vaccine may he given instead of 

Td vaccine, in persons who have not previously received Tdap. 

Tdap can be administered regardles5 of interval since the last 

teranllS¥ or diphd1eria-tOxoid containing vaccine. After receipt 

ofTdap, persons should continue to receive Td for routine 

booster immunization against tetanus and diphtheria, according £0 previously published guidelines (4). EitherT clap vaccine 

product may he used. further recommendations on the use of 

borh Tdap vaccines in adulL~ aged 65 years and older will be 

forthcoming should one or more T dap products be licensed 

for usc in this age group. 

Undervaccinated Children Aged 7 through 10 Years 

No data have been published regarding the safety or immunogeniciry ofT dap in children aged 7 through 10 years who 
240 


75050.193

Morhldtty and MOl tdlity VVeekly Report 

have never received pertu$Sl<;~colHaining vaccines. One published study assessed the use ofTdap~IPY vaccine a.s the fifth 

dose of acellular pertussis vaccine in children aged 4 through 

8 years (10). A subanalysis of the study data comparing safety 

and immunogenicity results among children aged 4 through 6 

years (n "'" 703) and 7 through 8 years (n "" 118) was provided 

to ACIP by GlaxoSmithKline. Three additional puolished 

studies have assessed use of T dap in lieu of the fifth DTaP 

dose in children aged 4 through 6 years who had recdved 4 

previous doses ofDTaV (I 1-13), These [hree studies enrolled 

609 subjects who received either T dap or Tdap-IPY in lieu of 

,he r,hh DTaP dose, 

Safety. In each study, no increase in risk of severe local 

reacdons or systemic adverse events was observed. The most 

commonly reported adverse events within IS days after receipt 

ofTdap were pain (40%-56%), erythema (34%-53%), and 

swelling (24%-45%). Fewer local reactions were observed or 

reported among Tdap or Tdap-IPV recipients compared with 

those who received DTuP or DTaP-IPY, but the differences 

were not sratisdcally significanr. l"o differences were noted 

when children aged 4 through 6 and 7 through 8 years were 

compared with respect to solicited or unsolicited adverse reactions following vaccination with Tdap-IPY. AC1P concluded 

that [he overall safety ofTdap and frequency oflocal reacdons 

in undervaccinated childr('n likely would he similar ro those 

observed in children who received 4 doses ofDTaP. 

Immunogenicity. Immune response to Tdap-IPV was comparable between children aged 4 through 6 and those aged 7 

rhrough 8 years, according to the GlaxoSmithKline subanalysis. 

fn both age groups, at least 99.9% ofTdap-IPV recipients had 

seroprotective levels of antibodies for diphtheria and tetanus, 

and responses to pertussis antigens were comparable 10 those 

observed following a 3-dose primary pertussis vaccination series 

as den ned by VRBPAC 

In children aged 4 through 6 years, the immune response: 

following receipt ofTdap (Boostrix or Adacel) was comparable 

to DTaP or DTaP-IPY (11,12). All subjects had seroprowctive 

andbody levels for diphtheria and tetanus 4 to 6 weeks after 

vaccination. For pertussis antigens, ont' study observed no 

significant difference berwecn Bomtrix and DTaP recipients 

in response rates to any of three pertussis antigens in [he vaccines, with similar effects on ce!l~mediated immune responses 

3.5 }'cars after vaccination (12). Another srudy demonstrated 

a fourfold increase in four pertussis antibodies in the majority 

of children receiving Adace! or DTaP-IPV (11). 

Guidance for use. ACIP recommends tha.t children aged 7 

through 10 years who are not fully vaccinated* against pertussis 

and for whom no contraindication to pertussis vacdnt: exists 

should receive a sing!e dose of T dap to provide protection 

• Fully v;H.:cin,ucd is d.:fmeJ a~ 5 do,es of D'!:,P Of 4 dme, ofDTaP if thl' founh 

dn~c wa~ JJmmi<;t~>rcd on or afu:r (ho" f()(Inh binhday. 

against pertussis. If additional doses oftetanus and diphrheria 

toxoid-comaining vaccines arc needed, thl"ll children aged 7 

through 1 0 years should be vaccinated according to catch~up 

guidance, with Tdap preferred as the first dose (5). Tdap is 

recommended in this age group because of its reduced antigen 

CQrHenl compared with DTaP, resulting in reduced reanogenicity. Curr~ndy, Tdap is recommended only for a single dose 

across all age groups. Further guidance will be forthcoming on 

timing of revaccination in persons who have received T dap 

previously, 

References 

of [ucionaHy notiflablt djsca~e:;, MMWR 

rr~venrlng tetanus, diphtheria, and peflu,%is among adults! lise 

of tcfanllS tox{liJ, reduced diphtheria toxoid and acellular pt'rmssis vaccine. Recommendations of the Advisory Committee on [mrntlOization 

Practices and recommendation of ACIP, the 

for use of Tdap among health-caft 

RR-17), 

5, CDC. rr~vtnring temnus, diphtheria, and pt'rtussi~ among adolescents: 

use of tetanus toxoid. r..::duce-d diphtheri;!. toxoid and acellular pertussis 

vaccines. Recommendations of the Advbory Committee on lmmuni1..1tion 

'RR-3). 

6. 

8, 

9. 

10, 

11 

12. 

tion. Hum Vaccln LUUO,"'U;,-'), 

13. Scheifele DW, Ha!penn SA, Ochnio jJ, FergusonAc' Sko .... ronski DM. 

A moJiheJ vau;:int r,lfC of large injection ,ite reactions to 

MMWR ( Jdm""y l'l, 2011 Vol. 6{) i No 1 
241 


75050.194

Morbldny dnd MmtalllyWeekly Report 

Notes from the Field 

Congenital Lymphocytic Choriomeningitis -

New York 

Lymphocytic choriomeningitis virus (LCMV) is an arena· 

virus carried by rodents, most notably domestic house mice 

(MuJ musculus), but also laboratory and pet rodents (1), 

Manifestadons of infections in humans are protean, from inapparent Of mild febrile illness to choriomeningiti5, encephalitis, 

or severe multi-organ disease. Mother-tn-child transmission of 

LCMV during pregnancy can cause abortion, chorioretinitis, 

hydrocephalus, or microencephaly, and can result in life-long 

vision deficits or neurologic impairment (2,3). Clinically. 

congeniral LCMV infection closely resemhles perinatal infections caused by the pathogem grouped under the TORCH 

acronym: toxoplasmosis, ruhella, cytomegalovirus, and herpes 

simplex virus, 

Reports of con genit-a 1 LCMV cases arc extremely rare in the 

United States. In January 20 lO, an infant in upstate New York 

with hydrocephalus and chorioretinitis was confirmed to have 

congenital LCMV infection by the Viral Special Pathogens 

Branch at CDC. A review of records by (he Onondaga County 

Health Department (Syracuse, 1\'ew York) and the New York 

Slate Department of Health found that 7 years earlier, (wo cases 

of congenital LCMV infection were diagnosed in infants residing withill a l.S-mile radius of the infant in the 2010 case. 

M,'v\Wfl ! Jill1llilrY 14,20\1 I VoL60 f Np. j 

LCMV infection is not a nationally notifiable disease in the 

United States, the extent of LCMV-associated morbidity is 

currently unknown, and most LCMV infections are believed 

(0 go undiagnosed. Health-care practitioners are encouraged 

to contact their local or state health department if they have 

ohserved case~ of suspec!ed LCMV infection. When LCMV~ 

associated disease is suspected, (he Viral Special Pathogens 

Branch at CDC asks that state health departments contact the 

hranch via e-mail (dvd-lspath@cdc.gov) or telephone (404~ 

639-lS10) for consultation and diagnostic assistance and to 

better identify and characterize LCMV-associated morhidity 

in the United States. 

Reported by 

Onondaga County Health Dept, Syracuse; New York State Dept of 

Health. Viral Special Pathogens S,: NationaL Center for Emerging 

dnd Zoonotic Infectious DisfaJ"es, CDC. 

References 
242 


75050.195

Morhidity ·1ncJ MOl tdl!ty Wt:'i::'k!y [{eport 

Notices to Readers 

Celebrating the 50th Anniversary of MMWR 

atCDC 

January 13,201 J, marks the 50th anniversary of til/;' first 

publication of MlvfWR by CDC. MMV(lR was not new 50 

years ago, but it was new to CDC, which itself had only been 

organiz.ed in 1946. The first ancestor of MAIWR was the 

Bulletin a/the Puhlir Health, which began publication on July 

13, 1878, under the Narional Quararuine Act. In the years 

between 1878 and 1961, MMWR and its antecedents went 

through severa! changes in n;:1me and format, and were housed 

in several different federal agencies. By 1960, the publication 

had assumed its current name, the Morbidity and Mortality 

Week61 Report, and was being published by the National 

Office ofYira! Statistics (NOYS) in Washington, ;m agency 

of the U.S. Public Health Service (1), NOYS later became the 

Nuional Cemer for Health Statistics. 

In the late 1950$, Alexander D, Langmuir, CDC's chief 

epidemiologist, became dett'rmined ro mow the disease sur~ 

veillance functions of NOYS to CDC, along with MMWR. 

Langmuir worked hard to accomplish rhis, securing the 

transfer in 1960 {2). CDC puhlished its first issue of MMWR 

on January 13, 1961, On the cover of tbat issue, Langmuir 

wrote, "The Center welcomes the addition of this important 

function. We believe the closer current contact with those 

reporting morbidity and mortality data will better permit us 

more rapidly and successfully to carry out our primary role 

of providing consultation and assistance to the States when 

communicable disease problems occur" (3). 

Since 1961, A-fMWR has hroadened imo a series of six 

different products: the MMWR Weekly, the Surveillance 

Summary series, Recommendations and Repons, rhe annual 

Summary ofNotiflablt' Diseases, the weekly MMWR pod casts, 

and Supplements. Since 1961, MMWR has published reports 

about all of the major infe([iolls diseases affecting the United 

States and the world. Through rhe decades, these have included 

smallpox (1960s), Legionn.1ire's disease (19705), (he first cases 

of acquired immunodeficiency disease (AIDS) (1980s), the 

first iatrogenic tr.1l1sm.isslon of human immunodeficiency virus 

(HIV) and hantavirus pulmonary syndrome (1990s), and the 

first repons of severe acme respiratory syndrome (SARS) and 

2009 innuenza A (H I NI) (2000s) (4). By the I 970s. MMWR 

was publishing many repons on noninfectious diseases and 

injuries, and today, approximately 55% of an reports in the 

MA-fWRWeekly arc on noninfectious disease topics. 

[n 1961, and fin decades afterward, MkfWR was the primary route by which CDC rapidly disseminated scientific 

inf(nmation about public health events. Today, many channels exist for this purpose, and the Internet has revolmioni'led 

medical publishing. While recognizing that it must continue to 

serve as "the voice of CDC" and provide timely, authoritative, 

and meful public health information and recorn01cndarions, 

l't1!vfWR also recognizes if must adapt to rapid changes in the 

puhlic health world. This wi!! bt one of the great challenges 

for MA1WR in its next 50 years. 

To celebrate the 50th anniversary, MMWR will puhlish a 

special supplement containing a hisrory of MMWR, and an 

amhology of reports depicting the main events, developments, 

and innovations in public health from 1961 [0 the present. The 

supplement will be available lattr this year to all subscribers 

and on the MMWR website. 

References 

J. Gregg MH. From morbidity and morraHry to prevention and comrol. 

Presented at the Americal! Medical Writers Association meeting,Adanta, 

1980. 

2. 

3. 

Changes to the National Notifiable Infectious 

Disease List and Data Presentation 

January 2011 

This issue of II1MWR incorporates changes to Table I 

(Provisional cases of infrequently reponed nori/Jablt' diseases, 

United States) and Tahlc II (Provisiona! cases of selected noti~ 

thble diseases, United States). In addition, changes are being 

made regarding the presentation of data on human immu~ 

nodeficiency virus (HIV) and acquired immunodeficiency 

syndrome (AIDS). This year, (he Table I and Table II modifl~ 

cations add conditions designated as nationally notifiable by 

the Council of State and Territorial Epidemiologists (CSTE) 

in conjunction wi(h CDC (I~3), 

Modifications to Table I and Table II 

l\vo new conditions have been added to the list of nationally 

notifiable infectious diseases: babesiosis and coccidioidomycosis. Incidence data for babesiOSIS wiil appear in Table I, and 

incidence data for coccidioidomycosis will appear in Table II. 

The surveillanct' case definitions adopted for these conditions 

,\~M\;vR i JJrJlIJry]4, 2011 r Vol 60 No. 1 
243 


75050.196

Please note: An erratum has been pub!lshed for tillS Issue. To view the erratum, please click here 

Morb!dlty and MortahlyWepkly Rc-port 

are listed in their respective CSTE position ~ta[ements (1,2) and 

are posted in the case definitions section of the National Notiflable 

Diseases Surveillance System (i\'[\![)SS) website (3). 

Elimination of HIV/AIDS Data Display 

The Division ofHIV/AIOS Prevention has decided to eliminate display of diagnoses of HIV infenion in children aged 

<13 years, formerly displayed in Table 1, and display of cases 

of AIDS and HIVIAIDS, formerly displayed io the quarterly 

Table IV. The rationales for these decisions arc as follows: data 

on diagnoses of HIV infection in children aged < 13 years are 

not transmitted to CDC on a weekly basis, and displaying 

data on HIV and AIDS diagnoses resulted in extended time 

requiremencs for producing the quarterly dara sets. Data on 

HIV and AIDS diagnoses, including in children aged <13 

years, are included in the annual HIV Surveillance Report 

published online by the Division of HIV/AIDS Prevention 

and available at http;IIv.rww.cdcgov/hivlropics/surveillancc! 

resources/reports. 

2010 State Reportable Conditions Assessment 

CSTE is collecting data for the 2010 Stare Reportable 

Conditions Assessment (2010 SRCA) from 56 reponing 

jurisdictions (50 U.S. stateS, the District of Columbia, New 

York City, and Four U.S. terricories) to determine which of rhe 

nationally notiAable conditions were reportable in each reporting jurisdiction during 2010. Data collection and validation 

for 2010 SRCA will conclude in 2011; results will be used to 

populate the "N" indicators For 20 I 0 and 20 II NNDSS data 

displayed in the 2011 MMWRdata tables. The 2010 and 2011 

NNDSS data displayed in the 20 II M MWRweekly provisional 

rabIes will reflect reporting requiremenrs gathered [rom the 

2009 SRCA unril2010 SRC...A. oHkial results are availahle. 

References 

2. Public health reporting 

and mrIonal ~urveillance for $tJteme!11 10-10-27. 

Avai!ahle Jf hnp·llwww.cste.org/ps2010flO-id-27.pd[ Accessed January 

3, Epidemio!ogLm. Public healrh reporting 

and narion,l! surveillance for COCcidioidomycosis. Position 

lO-lD-04. Available at h''f,Jh."""."".o'gl,,,ltHOI 

Accessed January 7,2011 

13 Mr\-~WR i )u!1u"ry 14,2011 / Vol 60 ! NO.1 

Errata: Vol. No. RR-72 

In [he Recommendations and ReportS, "SexualiyTransmittcd 

DiseascsTrealment Guidelines, 20)0," three errors occurred. In 

the "Recommended Regimens" boxes on pages 50 and 51, the 

recommendation for doxycycline should read "100 mgorally 

twice a day for7 day~." In the "Alrernarive Regimens" box on 

page 57, the first recommendation for tinidazole should read 

"2 g orally once daily for 2 days." 
244 


75050.197

H{()1\f Tl-I'E NATIONAL CENTER FOR HEALTH STAT1ST1CS 

Reasons for No Insurance Coverage' Uninsured Persons Aged 

<65 Years National Interview Survey (NHIS), United States, 2009t 

60~----------------------------------------------, 

50 

0 40 

rn 

~ 30 i 20 

10 

Reason 
245 


75050.198

MorbidITY ,md Mortality Weekly fleport 

Notifiable Diseases and IVlrlr"~lIrIFTables 

TABLE t Provisional cases of infrequently reported notifiable diseases (<1.000 cases reported during the preceding year) - United States, week ending 

January S, 2011 (1st week)* 

S·year Total cases reported 

Current C,m weekly for preVlOU5 years 

Disease week 2011 averaget 2010 2009 2008 2007 2006 5tate5reporting,asesduflng(urrentweek{No.j 

Anthrax 

Arbovlfaldlsedse, ~.~ 

CdhfDmld~erogrOLJPVlfU,dlsease 72 55 67 

Ea~tern <,qulne <,n(ephilhtlsVlrLJ\dl~ea\e 10 8 

POWaSSdl1VllliSd,sease 5 

51 lOlil~en(ephdlimVHLJ,disease " 10 

Wesrernequmeencephahtlsvirusdlsease 

BabesloslI NN NN NN NN NN 

Botu!l~m,\()tal 103 1'8 104 165 

foodborne 10 17 12 20 

infilnt 70 83 109 85 91 PAil) 

other (wound and unspeCllied) 26 25 19 27 48 

BrucelloSlS 126 115 80 '" 121 Fl(l) 

(hilncrold 37 28 15 23 33 VAIl) 

Cholera 8 10 9 

169 141 fl(l) 

HQemQph!I{)5mrrU~nz(Je, •• invasive disease (age c5 yr~) 

serorypeb 35 30 12 

nonserotypeb " '" 216 2" 175 

unkn{)wnselOtype 260 163 180 179 PA 12), OH (1). TN 0), NM (1) 

HilnsendlsedW~ 57 '03 80 

HantaVllu~pulmonarysynd1Ome ; 17 20 18 32 40 

lIB '" 310 292 288 Al(1),ORO) 

61 358 90 77 41 Fl (1), NC 11), NYC (1), PA (1) 

753 759 B08 VA (l},FL(2),COOl 

57 71 140 

Meningococcal disease,lnvaSlVe~': 

A.c'Y.~ndW-135 m 301 m 318 IDOl 

serogroupB 108 174 188 167 193 

other,erog,oup 9 lJ 38 )5 32 

uoknownserogroup 13 '" 482 (T(l). NYC (1), PA (2). OH {2). MO (1), R{ll, OR (1) 

NDve!mfluellzdAvlru>infe(tions"~ 4'13,774 NN 

Plague 

NN 

12 11 

q fever, !otal~ 117 113 120 

" 93 100 GA{l) 

28 20 14 

4 2 

16 12 11 

16' 157 112 125 

221 m 431 430 349 

TetanllS 18 19 l8 

TO~1(-;hock syndmme (~taphyiocacca!)§ 74 71 " 101 

Tnchmellom 13 39 5 15 CAm 

Tularem!a 93 123 137 95 

Typhoid fever 409 397 449 434 153 CAll) 

" 78 63 37 6 FL(1) 

2 1 

766 789 588 549 NN 

1 NN NN NN 

See Table 1 footnotes on next page 

10 ,\.1MWR I JdnU.,iy14,:tOl1 " Vol.6G No 1 
246 


75050.199

TABLE t (Continued) Provisional cases ofinfrequendy reported notifi;!lble disea.'ies «1,000 cases reported during the preceding year) - United States, week 

ending January 8, 2011 (1stweek)" 

n:ported 

t~ No measles cases were reported for the current week. 

n Data for menlngoCQccal disea~e (all serogroupsl are iI'I<ulable m Tab!e II 

... CDC dis(ontmued reporting of individual conformed and probable (ase-s of 2009 pandemic Influenza A (Hl Nl) VlIUS Infectton; on July 24, 2:009. Dur;ng 2009, four case~ of human Infec· 

tion with nove! influenza A ~iruses, differ .. nt from the 2009 pandemiC Influenza A 1H 1 Nl) stram, we[e reponed to CDC The four ca::;es of novelmfluenza A virus Infection reported to 

CDC dunng 2010 were idt:'ntlfled as SWine Influenza A (H3Nl) v,ru; and Me unrelated to the 1009 pandemK infiucr1z(l A (H 1 N 1) vnus. Tot.al case cOUflts for 2009 were prov'ded by the 

Influenza Oi,.'510n, NatIOnal Center for lmmUnlZdtlon dnd Respiratory Diseases (NORD) 

ttt No rubellil cases were reported for the cur[ent week, 

§H Updatl;'d weekly from reports to the DIVISIOn of SID Prevention. NatIOnal Center for HIV/AIDS, Viral HepatitiS, STD, <lr1dTB Prevention 

~t. Thcre was one case of Viral hemorrhaglC fever reported during wepk 12 of 2010. The one ca~e report was (Qnfirmed as la~sa fever. See Table II for dEngue hemorrhagic fevel. 

FIGURE I. Selected notifiable disease reports, United States, comparison of provisional4-week 

totals January 8, 2011, with hi.'itorical data 

DISEASE 

Giardiasis 

HepatltisA,acute 

Hepali!lSB,acute 

HepatltlsCacute 

Legionellosis 

Measles 

Menlngococcaldi5ease 

Mumps 

Penussi$ 

0.125 

DECREASE INCREASE 

0.25 05 

Ral!o (log sc3Ie)" 

~Beyondhistoricalllmit5 

CASES CURRENT 

<lWEEK5 

630 

42 

" 

16 

87 

28 

15 

890 

~ Ratio of current 4-week total to mean of 15 4-week totals {from previous, comparable, (lnd subsequent 

4-week periods for the past S years). The point where the hatched area begins IS based on the mean and 

two standard deviations of these 4-week totals. 

Notifiable Disease Data Team and 122 Citie.~ Mortality Data]earn 

Patsy A. Hall-Baker 

Deborah A. Ada~ls R05aHne Ohara 

Pe:u! C. Sharp 

Lenet' Blanton 

ivI,"viWR I JJnU(lry 14, )011 i Vol 60 I No.1 21 
247 


75050.200

MmtwlJty and Mort<'llfly Weekly Report 

TABLE II. Provisional cases of selected notifiable diseases, United States, weeks ending January 8, 2011, and January 9. 2010 {1st week}· 

Chlamydia tra(hOmatislnfll!ct!on Cocddioidomycosls crypto~iJ'Orjdio5i5 

Current Previous52weeiu (om (om Currt'nt Previous 52 weeks (om (om CurrentP~ (om (om 

Reporting area w~k M,d 2011 2010 w~k MeO 2011 2010 week MeO M" 2011 2010 

United States 9.393 23,907 26,312 9,393 21,625 165 165 NN 43 120 343 43 155 

NewEllgland 781 1.211 <99 NN 77 77 

ConncctKU[ 177 401 20 NN 71 71 

MaineS 50 100 45 NN 7 

Massa<hu$etts 432 401 693 m NN 8 

New Hamp,hlre , " 114 , 41 NN 5 

Rhodelsl<lnds 47 " 110 47 53 NN 1 

Vermont!> 30 lJ 51 30 13 NN 5 

Mid,Atlantic 1.069 3,364 5,07) 1,069 2,772 NN 15 38 

New Jersey 33l 33' NN 4 

New York tUpstate) 290 290 NN 

New 'Iork C!ly NN " 6 

Penn>yivanla <48 NN 4 " , E.N.Central 3,498 3,975 981 3,379 NN 17 30 '" " 31 

IllinoIs 20 761 20 NN lJ 

Indiana 364 NN 10 

Midllgan 575 946 S7S NN 3 18 3 

OhiO 147 992 147 NN " 24 14 

WISconsin 139 <76 139 NN 57 

263 1.377 1,556 1.337 NN lJ 83 

'5 105 270 15 270 14 

53 189 m 53 185 NN 9 

183 J48 3lJ NN 16 

112 505 621 112 "" NN 30 

56 97 173 56 78 NN 26 

18 79 11 NN 0 

27 61 78 27 63 NN 6 

1300 4,737 1300 3.839 NN 51 

83 83 NN 

76 76 NN 

633 633 NN '9 NN II 

319 319 NN 3 

1,210 1,210 NN 12 

NN , BS7 857 NN 8 

122 m NN 3 

E.5, C~ntri31 730 1,741 230 1,412 

Alabam3~ 524 449 NN 13 

Kentucky 269 49 NN 6 M1S,ISSfppi 730 384 230 422 NN 3 Tenness('e§ 555 492 NN 5 

7lS 3,013 ns 4,222 NN 28 

336 336 NN 3 

378 378 N' 6 , NN 8 

NN 21 

1,438 1.913 466 950 '" '" NN 30 

87 509 706 87 3 110 110 NN 

185 338 560 186 '" NN 

69 2DC 39 NN 

60 87 5' NN 

172 319 158 NN 

m 150 '" m 35 NN 

72 175 72 169 NN 

41 90 68 NN 

Pacilk 1,859 3,658 4,552 1,859 3.21'> 54 54 NN 

Alaska 113 '" !~9 0 NN , CaMom,a 1.426 2,771 3.563 1.426 2,469 " NN 18 

'" '58 '" 0 NN , Oregon 135 m 496 136 127 0 NN 13 Washington '" 406 661 297 362 0 NN 6 

AmerfC31l5<lmoa NN NN CN,M,I NN 

Guam B 31 NN 

Puerto RICo 91 765 76 NN NN U5.Vifgmlslands " 20 6 NN 

C.N.MJ: Commonwealth of Northern Marland Islands. 

U:Urtdvallable - No reported cases N: Not reportable. NN'NotNatlonallyNohliable Cum:Cumulallveyear-to-d~tecounts Med:Median. Max: Maximum. 

~ (ase counts for,reportlng year 2010 and 2011 <I(e provisi?nal and sU_bJE'{t to change. For further information on mterpretation of these data, see http://w''lw,(dcgov/ncphlid,,,,!nndss! 

ph,ffile,!ProVISlon3INatlona%20NollfiableDlseases~urvellianceData201009l1.pdf. Data for T8 dre displdyed 'n Tdble lV, whl(h app<,Ms quarterly 

T (ontam~ data repor\<,d through the NatlOna.l ElectrOniC DI$ease SurveIllance System (NEDSS) 

22 I\~I\I,WR ! 1Jn""ry 14, 201} , Voi 60 / No 1 
248 


75050.201

Morbidity and Mort<lilty Weekly Report 

TABLE II. (Continued) Provisional cases. of selected notifiable diseases, United States, weeks ending January 8, 2011, and January 9, 2010 (lst week)· 

Reporting area 

United States 

New England 

Connecticut 

Maine' 

Ma~sachu$etts 

New Hampsilife 

Rhodelsl,md~ 

VNmont~ 

Mid,Atlantic 

New Jersey 

New l'ork (Upstatl") 

New York Clly 

Pennsylvania 

E,N, Central 

illmols 

Indiana 

Michigan 

Ohio 

Wiscollsin 

W,N,C('ntral 

Iowa 

Kansas 

Minnesota 

Missouri 

N",braska~ 

NorthOakota 

South Dakota 

W,s,Cll"ntral 

Afkansa~~ 

LouIsiana 

Oklahoma 

Texd<,1 

Mountam 

Anlona 

ColoradO 

Idaho~ 

Mofltana~ 

Nevada~ 

New Mi"xtcof 

Utah 

Wyomtn9~ 

Pacific 

Alaska 

California 

Hawaii 

Oregon 

Washington 

Territories 

Americal1Samoa 

CNM.I 

Puerto Rico 

U.s.Vng.nlslands 

Current 

w('ek 

o..ngueFevert 

Previous 52week5 

Med Max 

CN,M.I. CommollWl'!alth of Northern Manana IslandS. 

Com 

2011 

DengueViru51nfectioTl 

Com 

2010 

Current w.'" 

Dengue Hemorrhagic Fever§ 

PrevKJus52weekoi 

Med Max 

U: Unavailable. -: No leported cases. N: Not (E'port~ble. NN. Not Nat/oMlly Notltiable Cum: CumulatIVe ye(lr·to·dat(>count~ Med: Median. Max: MaxImum 

Com 

2010 

• Case WUE1ts fOf reporting year 2010 and 2011 are provi,lonal and subject to change, For further mform(ltlOn on interpretatIOn ofthesc data, SCI' http://www.cdc.gov/ncphi/dls~slnnd>s/ 

phs/tiles/PrOV!~IOnaINattona%20NotifiabjeOlsease\sUrV2!nar"!CIl"Data20 I 00927.pdf. Dilta for TB ilre dl,played 1r1 T~ble IV, whICh appears quarterly 

t Dengue Fever mcludes c~ses that me.,.. cnteria for Dengue FevN with hemorrhage, other dfl1lral and unknown rase da>~!licaHon<; 

~ DHF include, ca~es that meN cntenil fOf dengue shock syndrome (055). iI mOle severe form of DHF. 

, Contam~ dilta reported through the Ndtional Ele~tfonlC Disea,e Survell!an~e System (NEDss) 

Mf,'vvr~ i J:Hw,~ry lLJ 2011 ,/ Vol. 60 / NO.1 21 
249 


75050.202

Morbidity clpd Mortality Wef'kly Rerurt 

TABLE II. (Continued) Provisional cases of selected notifiable diseases, United States, weeks ending January 8, 2011, and January 9, 2010 (1st week)* 

Reporting area 

United States 

New England 

(onnectl,ut 

Maine~ 

Massachusetts 

N!ewHampshlre 

Rhodelsland~ 

Vermont' 

Mid. Atlantic N!ewJersey 

NewYofk{Up~tate) 

Nc:.wYorkC,ty 

Pennsylvania 

E.N.Central 

HlinOiS 

Indiana 

MIChigan 

Ohio 

Wisconsin 

W.N.Central 

iowa 

K<lnsas 

Minnesota 

Mi>~oufl 

Nebraska9 

North Dakota 

$outhDakota 

5. Atlaotic 

Delaware 

D,strictofColumbia 

Florid<l 

Georgia 

Maryland§ 

NorthCarollnd 

$outhCarollna§ 

Vlrqirllil~ 

WestVlrglnJa 

W.5.Central 

Arkamias~ 

lowslana 

Oklahoma 

Texas§ 

Mountain 

Amona 

Colcrado 

Idaho§ 

Mantdna~ 

Nevada~ 

New MexIco' 

Utah 

Wyomln9~ 

P",dfk 

Alask~ 

California 

Hilwall 

Oregon 

Washington 

Territories 

AmencanSamoa 

C.N.M,I 

Puerto RICo 

U5.Vlrginlslands 

Current 

week Med Ma~ 

13 

o 

I 

o 

13 

I 

o 

o 

19 

3 

o 

2 

4 

3 

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2 

8 

I 

" 3 

2 

I 

6 

5 

C.N.M.I.: Commonwealth of Northern Mariilnillslands 

(,m 

2011 

(,m 

2010 

Ehrlichiosls/AoaplaslTIOsist 

Anaplasma phagocytophi!um 

Curreot PreviausS2weeiuweek Med Max 

56 

, 

5 

2 

o 

3 

5 

o 

12 

I 

12 

39 

2 

o 

o 

I 

39 

3 

(om 

2011 

(om 

2010 

CUHent 

w'"'" 

Undetermined 

PrevIous 52weeu 

Me<! Ma~ 

10 

2 

2 

o 

o 

I 

U: UndVa!ldbie. -' No reported cases. N. Notreportable. NN. Not NatIOnally NOt!~lIb!e Cum: Cumulatiye yeaHo·date (ounts Med. Median Max: M?wmum 

(om 

lOll 

(om 

2010 

• Case (aunts for reporting yellr 2010 and 2011 ilre provl>Ional and subject to change For further information on mterpretatlon ofthe,e data, see nttp·/lwww.cd(qoy/ncpnIJdTSSslnndss/ 

phs/~les/Provls,onaINatlona%20NotlfiableD!seasesSurYeIUanceData201 00927.pdf Data for TB ilrl;' displayed in Table IV, whICh appears quarterly 

t Cumulat!ve total E. eWlfl9liGt~es reported for year 2010 '" 10 and 0 case reports for 2011 

~ Contains ddta reported thtQugl1 the NatIOnal ElectroniC DI~ease SurVEIllance System (NED$S). 
250 


75050.203

Morb!dlty and MOr!-C1lity Weekly f~epon 

TABLE II. (Continued) Pro\lisional cases of selected notifrable diseases, United States, weeks ending January 8, 2011, and January 9, 2010 (lst week)~ 

Haemophilus mfluenzae, invasive t 

Glilrdillsis Gonorrh.~1:1 A!lag~,aUserotypes 

Current Previous51w~eh Com Com Current PreviousS2 ..... eek$ Com Com Current Pre~!ous52w~u Com Com ReporUn911rea week M,d M" 2011 2010 wm M,d M", 2011 2010 week Mod M" 2011 2010 

UnitedSta.tes 132 ll9 429 m m 2,253 5.581 6.382 2,253 5,S84 30 58 81 30 81 

New England 32 " 32 100 196 " 61 

Connecticut 5 13 8 30 159 , MaIneS 4 Il 3 3 11 . Massadwscu$ 13 " 16 41 47 80 42 42 

New Hampsfilre 3 , , 3 7 , 5 

Rhadelsl<md§ 1 7 5 15 6 

V(.'IITlOnt3 10 0 17 

Mid. AtlantiC 61 106 19 "5 690 1,167 "5 600 11 19 18 

New Jeney 6 18 , 96 111 175 96 96 , 5 3 

NewYor!<(Upstate) , " " 2 5 36 108 203 36 35 3 1 1 

N.,w Yor~ CHy , 17 l3 , 10 218 531 '" , 6 5 

Pl;'nnsylvam3 10 15 17 10 10 255 366 "' 195 , 9 9 

E.N.Centra! 25 55 89 25 48 255 '56 943 10 20 13 

illinOIS 11 2S 11 189 1 '" 3 

Indiana 5 " 3 99 59 

MIChigan 1 13 25 1 13 159 '59 159 249 

Ohio 22 17 19 22 16 66 315 66 333 

Wiscomln , 8 32 , , " " ,. 54 

W.N.Centf1t1 13 '4 101 13 25 92 285 398 92 271 14 

low" 5 11 n 57 51 1 

Kaf"lSilS 4 10 40 62 35 , Miool'sota 0 7S 31 " " , MiSSOuri 8 25 55 '" 180 55 118 

Neb(iIS"ka" 4 , 23 

North Dakota 0 5 " " " " , 8 

$outhDakotil , 7 7 20 

38 69 101 38 l5 939 1,345 1,790 919 U48 

0 5 13 " " " 48 13 

1 5 30 19 66 30 16 "2B " 7S " 21 216 391 '90 ". . '5' 51 2 205 392 56 

5 " 2 108 132 116 108 6. 0 0 N 379 NS 5.96 379 392 

2 , 2 153 152 144 

" 7 16' ISO m '6; 192 , 20 10 26 2D 7 

[.S.Central 11 " 95' '" 80 460 

Alabama~ 11 152 217 ISO 

Kentucky 0 73 14' 17 

Missl~slppl 0 115 116 80 150 

Tennessee§ 6 137 '95 143 

W.s.,CentraJ 14 181 835 1,298 181 J.1Q6 10 

Arkan$ilS§ , 105 80 133 >OS 73 3 

8 75 90 3S1 7S 3S1 

5 , 75 359 , 359 

0 599 9\9 413 

Mountain 31 SI 14 104 177 235 )04 88 15 10 

ArIZ()n~ 3 8 5 18 60 'Oil 18 10 

Colmado 11 27 8 " 95 47 " 5 Idaho) 4 9 , 2 14 , , Montan<J~ , 7 1 2 6 2 Nevada~ 1 " 29 " 27 NewMexico~ 2 5 38 2D 3$ 38 3 Utah 4 11 , 5 15 , 2 

Wyoming" 1 7 0 

Padfl' 31 53 80 31 " 310 608 815 310 50' 11 

Alaska 2 6 2 14 31 " , Cabfornia " 33 " " 37 263 4% '" 163 511 18 

Hawiln 0 4 14 16 18 2 Oregon 20 14 19 34 14 " 5 

Washmgtan " " 53 6J " " 2 

TI!"HilOf"ies 

AmefiCanSilmo-'l 

C.NM.I 

Gu~m 5 

i'uelloR!Co 14 

U.S lJifglnhlands 7 

CN.M.I.: (omlTlon ..... ('a!th of Northern Manana Islands 

U'UnaViI!lable -: No reponed cases N: Not reportable NN; Not Nationally Notifiable. (um: (umulatlveyeaHo·date (ounts Mcd:Medlan. Max:: MaxImum 

• Case counH for r<"porting ye,u 2010and 201! ar-l' provislol\al4nd sub)>::(t to change. fOI further 'nformatlon onH1tcrpre!atlon of these data, see http://www.(dc.gov!n(phi!dlss~nl"1d$s/ 

phs/flle:;/P(OvI5torMIN.atlOna%2DNotlfrableDlseasesSurveillan(eData201 00927.pdf. Datil fOf 113 af(' displayed In Tabl€ tv. whl{h appear~ quartef1y. 

t Datil for H. mfluenzae (age <5 yrs for serotype b, l1Of1SerotyPe b, and unknown serotype) are iw.~itable in Table!. 

~ (ontains data reponed through the Nanonal Ekclroni( Olseil,e Surve,lIance System (NfDSS) 

iI'1.WJW'! .!:lTIUdry14.2Dlr ' Voi 60 j NO.1 2') 
251 


75050.204

,,\1olbldlty and MOrtc1l1ty \.I\'<..'<-Idy Fh:'POft 

TABLE II. (Continufld) ProvisiDn~1 c~ses of selected notifiable diseases, United States, weeks ending January 8, 2011, and January 9,2010 (1st week)" 

Reporting area 

United States 

New England 

ConnectiCut 

Mamet 

Massa(hu~etts 

New Hampshire 

Rhode15lal"d' 

Vermontt 

Mid. Atiaoti( 

New)efsey 

Nt'wYork(Up5tatt') 

NewYOIkClty 

P,mnsytvan!J 

W.N.Central 

Iowa 

Kansas 

Mml"-.e,ota 

MIS50un 

Nebraska l 

NorthPilkota 

South Dakota 

s.Atlantic 

Delaware 

O!stnctofCoiumbla 

FlOrida 

GeorgIa 

Marylandt 

NorthCarollna 

SouthCMolmat 

Vlrgmla j 

WestV!fglT1la 

E.S.Cerllrai 

Alab~mat 

Kentucky 

Mis~,s~'PPI 

TenneSSee~ 

W,S.Central 

Arkansas' 

Pa(lfic 

Alaska 

Callfomia 

Hawaii 

Oregon 

Washington 

Territories 

American Samoa 

CNMI 

Guam 

Puerto RICo 

U.S.VIr9mlslands 

Current Previous52weeks 

week Med Max 

43 

5 

3 

1 

5 

1] 

3 

, 

11 

, 

4 

3 

1 

1 

16 

1 

, 

, 

C N.M.I: Commonwealth of Northern MarlJna IsIJnds 

C"m 

2011 

C"m 

2010 

29 

2 

Curreot 

week 

Hepatitis (vlfal,acute),by type 

Med 

60 

16 

0 

0 

5 

3 

1 

I 

I 

I 

0 

10 

5 

6 

17 

5 

5 

1 

32 

, 

1 

11 

7 

6 

16 

4 

6 

12 

13 

B 

29 

4 

3 

6 

2S 

17 

16 

1 

3 

C"m 

"'" C"m 

2010 

39 

3 

, 

Current 

week 

Previous 52 weelG 

Mod 

25 

U· UndVJ1!Jble _. (>.Jo reparted case, N. Not reportable NN Not Nationally NOllfi<lble (um· Cumula(1VE'Yl:'ar-lO·diH(>counts Med; Median Max· MaXlIT1Um 

C"m 

2011 

C"m 

2010 

• C(lse counts for reportmg year 2010 are provISional and SUbjeLt 10 change For further inform~tlon on InterpretatIon of these data, ,ee httPI{www.(d(,gov/ncphl/dl%~(nnd>,(phs(l'i!e$( 

PIOVb!Ond\N~!lDna%2{)NotlflableOls(>a~esSUrVe!n<lnceData20100927.pdf. Data for HIV/AlDs, AIDS and TB, when available, are dlsplilyed In Tdble IY, which appears quarterly. 

t Contains diltil repOIled through the Natlona! Electronic Diseil5e Surveillance System (NEDSS) 

,\~!vIVF! i )2:IElJary 14 2011 / Vol 60 .' No. ) 
252 


75050.205

Morbidity <\f\d {Vlori,)hty W(!(.'k!y Heport 

TABLE It (Continued) Provisional cases of selected notifiable diseases, United States, weeks ending January B, 2011, and January 9, 2010 (lst week)" 

le'JioneUosis Lymedi~ease Malana 

Current Previou~51weeks C,m C,m Current PreviousS2wee-ks C'm C,m Cum~nt Previous 52 weeks C,m C,m Reporting area week M,d M" 2011 1010 .". M,d M" 1011 2010 week Me<! M" 2011 2010 

UnrtedStates 20 " '" 20 36 35 383 1,655 35 267 26 80 

New EnglMd 3 15 J 119 495 19 1 

Connenicut 1 6 " 211 43 Q 

Maine t 0 4 11 65 Q 

MMS<lchu~ett~ , 10 39 216 27 1 

New Hampshue C 5 ,. 68 7 0 

Rhodelslandt 4 40 0 

Vermont I 2 27 0 

Mid. Atlantic 14 737 16 120 17 

N~wJerSi'.'Y 11 49 220 35 

New York jUpstate) 19 3S 200 1 

New Yo,i; Ctty 17 2 , 4 14 

Plmnsyl1ianla 18 " 86 383 15 80 3 

E.N.Centrit! 1l 14 m 12 , !llmols 15 17 

Indian.a 6 7 M,ehig<lrl 20 13 OhiO " 0 9 WI~eomjtl 11 11 296 12 

W.N.Central 

Iowa 10 

KM'lsa$ 1 

Minnesota 

MI5$OUn 

Nebraska! 

NmthDakota 

South Dakota 

10 " 16 114 16 53 

3 3 11 32 J 11 

4 0 4 

9 2 10 2 7 

4 0 1 1 6 

6 14 101 17 

7 " , 9 13 

2 0 3 , 10 " 76 21 5 

3 0 19 1 1 

E.S.Central 10 1 3 

A~bamat 2 

KeC'lwcky 

MiSSissippi 

Tennessee! 

W.5.Central 

Arkansas! 

lOUisiana 

Oklahoma 

Texas! 

Mountain 10 

Arizona , Colorado 5 

Idahof 1 

Montdl1.il t 

Nevada t 

New Mexlco t 

Utah 

Wyomlngt 

Pacific 19 10 10 

Alaska 2 

Cal!fofmil 

Haw.;!l! " , Oregon 3 Washington 4 

Territories 

Amefl~(!n5amoil 

CNMI 

GUlIm 

PucrtoRlto 

US.VHglnlsl~nd$ 

C.N.M.L: Commonw!;'3lth of Northern Manana Isl~nds 

U: Unavailable. -: No reported cases. N: Not (eport~bk NN: Not Nationally Notifiable. (urn: Cumul.;ltive year-Io·date eounts, Med: Median. Max: MaximufTI. 

'Case counts for reponing yeM 20\0 and 2011 are provisional and subject to change.. (oor further in/ormation on intNpr{'tation of these data, see nttp:iMww.cdc.govincphl/dlssl.tnndss/ 

phsJfilesfProv!s\onaINatlona%20NotlfiableDlseasesSurve,lIanceDilta201 00927.pdf. Data forTB are di,played In Tablc IV. which appe(lrs quarterly 

t Contains data rcport('d through thl" Nat1ona! Elcctroni<; DIs.ea~e sUf~llJance System (NED:;S) 
253 


75050.206

MorbKi!ty dnd MOrtllllty Wf'ekly Rt'port 

TABLE U. (Contintled) Provisional cases of sele<ted notifiable diseases, Unrted States, weeks ending January 8,2011, and January 9, 2010 (1st week)· 

Reportil1garea 

United States 

NewEllgli.U1d 

Conn('cticul 

M<lH'Ie~ 

MassllChusetls 

New'iampshlrC' 

Rhod"lsland§ 

VermQnt~ 

Mid. Atlantic 

New Jersey 

New YOlk (Upstatel 

NewYQ!x(lty 

Penn~ylvan'3 

E.N.Central 

IJIUlQ!5 

Indi3nil 

Mich'gan 

Ohio 

W,sconsin 

W.N.Central 

Iowa 

Mmnesot(l. 

MIS$ilUIl 

NC'bra'i~a~ 

North DaKotJ 

Sov!hOakolil 

E5.Central 

Mabam(l.~ 

Kl'ntucky 

MI$siSSIPP' 

Tenntssee~ 

W.S.Centraj 

Arkansas§ 

lOUlSlana 

Oklahoma 

Te~~s~ 

Mountain 

Arizona 

Colmddo 

Iddho~ 

Montana~ 

Ni'vada" 

NewMe~)(o~ 

Utah 

Wyomin9~ 

P,t(iflC 

Ala~kil 

California 

Hawil]1 

Oregan 

Washington 

Te1fitorje~ 

Ame;m;anSdmoa 

CNM.I 

Guam 

PUeltoRKo 

U.S Vngtllisiands 

Menin90coccilldi~ilse,!nvasillet 

A.lI~tagroups 

Cum~nt Previous 52 weeks 

we@k Met! Max 

26 

(,m 

2011 

10 

C.N.M.l (ommonw<,alth of Northern Mariana Islands. 

(urn 

2010 

Mumps 

C Prellious 51 weeks urrent 

w~k M,d M" 

30 '" 

0 

0 

" 209 24 

20t " 

16 

6 

14 

7 

1 

1 

, 

10 

1 

Cum (urn Current 

2011 2010 w~k 

29 '" 

16 10 

" 7 

51 

37 " 

2 

16 

10 

6 

15 

Pertussis 

PrevlOus52weel(s 

Med Max 

449 780 

8 " 1 8 

1 S 

S 13 o , 

o 9 

o 4 

37 142 

, 9 

11 77 

o 9 

14 69 

lOS 

20 49 

12 26 

28 S7 

33. 80 

9 " 

33 193 

12 34 , 9 

o 

143 

44 

13 

30 

30 79 

o 4 

o 1 6 18 

16 

4 

6 

18 

8 

31 

34 " 

21 

34 

8 

16 

8 

11 

S4 113 

3 14 

1 ) 

o 23 

49 108 

29 123 

16 

108 

15 

16 

, 

11 

13 

1 

66 222 

o 8 

41 194 

o 6 

6 15 

6 38 

U· Unilvaflable. -; No reported cases. N. Not reportable NN' Nor Natlon1llfy Notifiable Cum: Cumulative yeaHo"date (ou"t5. Med: Median. Max: Maximum 

(,m 

2011 

(urn 

2010 

136 129 

2 

6 

51 60 

9 

B 

11 13 

J1 19 

2 11 

16 13 

2 

1 

10 

6 

15 15 

10 

15 

2S 

• Case {Dunts fo! !epo!tIll9 ye;n 2010 an.d 2011 are prollis'onai and $ubJe<t to Chang .. for furthN Intormatlon on In.wrpri'tatlon nf these data, see http·//www.cdcgov!ncphiMi"s!nndH! 

phsHlle~/PfOvwonaJNa((ona%20NotihableDISea,eS~urv<l!/lan(eDa!a20100'927.pdf Data for TB are QlsplaYf'd In Table IV, whlth appedrsq\latt~rly. 

i Data for meningococCdl dtsra<;e, Invasive (au~ed by Sf'rogroups A, C, y, i:md W-135, serogroup 6; other seroylOup: dnd unknown serogroup Me avadilble in Table I 

§ Contain:'> dflta reported through the NatIonal flecHoolC DI,e.Jst' Surveillan{e System (NEDSS) . 

.\1MWfi / J<.Inl,dry 1.; 2011 i Vnl G{1 " No 1 
254 


75050.207

MOl bldity dnu Mortdlny Weekly Heport 

TABLE II, (Continued) Provisional cases of selected notifiable diseases, United States, weeks ending January 8,2011, and January 9, 2010 (lst week)* 

Rabies,animal s3!moneUo~is Shigatoxin-produclno:,E.coli(STEC)t 

Current Pre ... iousS2weeks Com Com Current Pre ... lous52weeks Com Com Pre ... iousS1. ... eeu Com Com 

Reportin!j"3rea w~. Mod M" 1.011 2010 week M,' M" 2011 1.010 w~. M,' M" 2011 1.010 

United States 62 36 238 876 1,736 2J8 990 38 87 m 38 90 

New Eng!and 13 5 " 4% 496 57 57 ConneW(lJ; 9 0 480 480 57 57 

Marne~ 2 7 l 

Massa.chusett~ 22 52 11 9 

New Hamp$hlr~ 3 11 3 2 Rhode !sldnd~ 2 17 2 1 

Vermont~ 1 5 2 

Mid.Allant/(: 19 17 9S 17 32 

New Jersey 0 17 57 9 

N('wYork(Upstate) 19 3 25 63 13 

NewYOIkClly 11 1 25 56 26 7 

Pennsylvania 14 13 J1 81 2J 13 

E.N.Central 17 22 SO 244 74 10 43 13 

lilinol, 11 " 114 2J 9 

Indiana 0 11 62 12 10 

MlCh!gan 5 4 15 " 11 16 

Ohio 12 18 24 41 22 11 

Wis(onsm 0 9 45 6 17 

W.N.Cenlra! 14 17 46 97 17 15 11 3B 

Iowa 3 3 9 34 J 2 2 16 

Kans~; 2 7 18 2 3 1 5 

Mmnesota 0 32 0 7 

Missoun 13 4< 17 

Nebraskas 13 6 

NOlthDakota 13 10 

South Dakota J 17 4 

20 91 258 611 169 13 30 

3 11 2 2 

1 6 1 

0 96 48 108 226 " B7 2J 

0 0 22 43 132 22 44 15 

6 14 6 17 55 6 15 9 

0 0 32 '<0 1 10 

0 0 24 99 9 2 10 15 19 57 14 9 

1 7 2 13 3 

3 18 55 177 18 42 22 

2 19 52 18 4 

4 10 11 J2 10 5 6 , 1 18 67 , 9 12 4 5 15 53 5 10 7 

30 105 24 15 

11 <3 5 

0 20 49 15 2 30 12 39 1 8 

0 63 170 8 14 

Mountain 16 49 

AUlDna 16 42 " 21 13 

Colorado 14 10 24 14 8 21 

!daho~ 2 3 9 2 5 7 

Mont""'" 7 5 Ne ... ~da~ 22 5 New Mexiw§ 19 6 

Utah 17 7 Wyomlng~ 4 8 3 

Pacific 12 50 114 2SJ 50 13 36 13 

A!a~~a 2 1 5 1 Ct)l!fornla 12 SO 79 217 SO 13 20 

Hawal! 0 3 14 Oregon 2 8 48 14 Washington 0 15 33 19 

Territories 

AmencilnSamoa 

CN.M.I 

Guam 0 2 Pu<,rtoRl(o 10 11 U.5. Vlrgm Islands 0 0 

CN.M.I; Commonwealth of Northern MananJ Islands 

U:Una ... allable -"No reported (ases. N:Notreportab!e. NN: Not Nationally Notifiable Cum: (umuIJti ... e yeaHo·date counts. Med: Median Max: Maximum 

• Case counts f~r (eporting year 2010 and 1011 are provisional and sljbjectto. change. For further !nformatlon an interpretation afthese datil, ~et! http://www.cd(.gov/ncphl/dj~ss/nndss/ 

phs(ftles(PrOV!SIOnaINat!O!l3%20Notlfiab!eOlseilses5ur ... edldnceOatalOl0Q927.pdf Data forTB ilre displayed In Table IV. whICh <lppcars QUilrterly 

t Indudes E. coti0157:H7; Shiga tOXIIl-PO$lhvl", seragraup non-Ols7;and Shiga !oxin·po~it!\Ie. flat serogrouped. 

~ Contdimda!iI 'epOited through the NJtJanal Electronic Disease SUlvelllan(e Sy~tem (NEDSS) 

,V,MW;ll JOl1\1Jry 14,2011 , Vol. 60 i No I 29 
255 


75050.208

Morbidity cl!lel Mortdllty Wr:-ekly Hepon 

TABLE II. (Continued) Provisional cases of selected notifiable diseases, United States, weeks ending January 8, 2011, and January 9, 2010 (1st week)~ 

Spotted Fever Ri<:kettsio5is (induding RMSFlf 

Shigellosi~ Confirmed Probable 

CUffent Previou~52weeks Com Com Current Prevlous52we<lks Com Com Current PrevIous 52 weeb Com Com 

Reporting area week M,d M" 2011 2010 w~k Mod 20n 2010 w~k M,d M" 2011 2010 

United States '" 452 13 91 

New England 68 68 1 

COrHleC(!(ut 03 03 D 

Malnl.'~ 1 1 

Ma,,3chusetts " D 

New Hamp'ihirc 2 1 

Rhode Island~ 0 2 0 

Velmont§ 0 1 0 

Mid. Atlantic 33 61 39 

New Jersey 6 " 6 

New York IUp,tJte) 3 15 1 

NewYorkClty 5 " 9 

Pennsylvan'iI 12 55 2l 

E.N.Central 26 238 

Illin(li~ 9 228 " 12 

Indlilna'i 1 4 

MlChlgan 5 10 1 

Oh,o " 6 

Wisconsin 21 5 

W.N.Central 12 39 81 12 

lowil " , 5 5 

Kansas~ 5 13 1 0 

Mmf]esota 0 3 0 

M!sSOUII 31 66 20 

Nebraska~ 1 10 , North Dakota 0 0 , South Dakota 0 2 0 

S.Atlantic " 134 25 60 

Delaware§ 0 4 2 3 

DlstrictofColumbl<l 0 4 0 

Flonda§ 31 22 53 31 J 2 Georgia 6 14 39 6 " 0 

Maryland§ , , 8 1 5 

NorthCarolrnd J 36 48 

South Carolina~ 1 5 2 

VlIgiF'lla'i 3 8 12 

West Virginia 0 66 0 

E.S.Central 13 40 29 

Alabama~ 4 " 8 

Kentucky 3 23 0 

MissiSSippi 1 4 l 

Tenne5scC~ 5 14 20 

W.s.Centra! " lOS 18 

Arkansa~" 1 0 17 

lOUisiana 5 11 , Oklahoma S 13 6 

Tcxas~ 1 38 "' 1 1 l 

Mountain 13 15 32 13 10 

ArllOr1~ 8 18 4 3 

((llor.ldo~ , , 3 Idaho~ 0 l 

MontanaS 0 1 

Ne"ada~ 0 5 

New MeXI(o§ , 10 

Ut~h 1 4 

Wyoming'" 0 0 

Padfi<; 13 21 58 13 

II.laskd 0 1 

California 13 17 SO 13 16 

Hilwall 0 3 

Oregon 1 4 

Washlflgton 1 17 

Territories 

AmcncanS3moa 

CN.M.I 

Guam 

PUf.'rtoRito 

US.Vllgmlstaf1ds 

CN.M.l.: Commonwe<lllh of Northern MJflan~ Islands. 

U. Unavailable. -: No reponed cases. N: Not reportable. NN: Not Nationally Notlfi~ble Cum' Cumuldtlve year.to·d<ltecounts. Med' Median. Max: Maximum 

• Case counts for reporting year 2.010 and 2011 are Pfovl510n~land subject to ch<lngc For further information on intefpH'tation of these data, see http'/Jwww.(dc.govJn~phi!dIS;5!nndss/ 

phSlfiles/ProvisionaiNationa%2.0NotifiableD!seasesSurVeIUi'IOceD<"Ita20100927.pdf Data forT8 are dIsplayed In Table IV, which appears quartedy. 

t Illnesses WJth s,m<i"r cimJeal presentation th~t result from Spatted fever group n(k('tt~ia infeetions are reported as Spotted fevernckettslo$e~ Rocky Mountain 5POtted fever{RMSfl caused 

by RKkettsla rkkrnsli, IS tl"le: mo~t common and well· known spo\t~d lever 

!\ Contatm data reportEd through the NatIOnal Electronoc Disease Surveillance System (NEDSS) 

30 Mi'v1WR )"nlh1fY 14, )01; / Vol. 60 i No. ; 
256 


75050.209

MorbIdity dnd Mortality Wl2l::'kly flerort 

TABLE II. (Continued) Provisional cilses of selected notifiable diseases, Unit~d States, weeks ending January 8, 2011, and Janu.ary 9, 2010 (1st week)" 

5trepto,o((uspneumonia£,tinvasi\l.:!diseil~e 

Allilges Age <5 Syphi!is,primaryandseCClndary 

Current Previous 52 weeks COm (om CUffel1t Previou~52weeks (om (om Curfel1t Previous 52 weeks (om (om 

Reporting area week M"" M" 2011 2010 week M,d M" 1011 2010 week M"" M" lOll 2010 

UnIted States 153 267 495 253 <30 11 " B4 1l 60 40 24) 117 40 194 

New Englalld 9 99 14 9 20 2 

Conlll'ctlCut 0 " 11 1 8 

Md"1e~ 1 6 1 0 ) 

Mdssachusetts 1 5 5 15 

New Hamp~hile 0 7 0 2 

Rhodelsl,md§ 0 J6 Vcrmont§ 1 , Mid.Atlantk 24 18 56 24 JJ 19 32 " 26 

New Jelsey 2 8 , 5 4 1l 4 

New York (Up~late) 3 7 4 7 2 8 

New York City 6 JJ 32 6 0 14 19 It 20 

Pennsylvdnta " JO 22 " 5 7 16 2 

55 59 98 55 " J8 JO 27 48 21 , 7 2 5 2 8 26 12 

9 24 J8 6 1 3 

7 13 27 26 6 11 " 

" 2S 49 " 6 19 

7 22 6 4 3 

W.N.Central JO OJ 12 6 18 

low" 0 0 0 0 ) 

Kdnsas 2 7 2 0 ) 

Mlfmesota 0 " 8 1 9 

MISSOUri 2 10 4 ) 9 

N",bfask<l~ 2 9 2 0 2 

NorthD"kO\J 0 11 0 0 

South Dakota 0 ) 0 1 

S.Atlantic 105 62 144 J05 126 27 18 56 103 2J J9 Delaware 2 I 3 2 1 0 0 4 

Dlstri<:tofColumblil 0 3 1 2 1 20 1 

Flonda OS 25 " OS " 18 21 " JJ 

Georgia 16 9 28 16 28 9 9 29 2 

Mi!f)lIJnd~ 22 31 22 15 0 14 2 

North Carolina 0 0 22 8 $Outll(.,rolma§ 15 15 4 7 4 

Vlfgirua§ 1 " 11 

WestVlrgml<l 2 

E,S.Central 18 24 50 SO " 39 10 AI<lbam'!'i 0 0 5 JJ 6 

Kentucky 3 16 2 1 12 

MiSSissippi I 8 4 16 

Teones\ee~ 20 " 13 44 17 4 

W.S,Celltra! 35 J09 6 17 " 37 63 33 Arkansas1 3 19 2 3 3 12 Louisiana 2 8 5 3 8 28 

Oklahoma 1 5 1 5 1 7 Texa,§ 88 , 17 24 33 

Mountain )0 " 81 30 82 12 25 Arnoni! , 13 SJ 9 51 7 8 

Colorado 20 11 22 20 70 8 Iclaho~ 0 2 2 Mont<ln,,§ 2 2 Nevilda~ 4 9 NewMe~lCo% 10 4 

Utdh 9 

Wyommg§ 15 

Pacilic 15 44 63 AI~,>ka , 0 1 

C"hfornia 14 38 54 

HawaII 2 0 5 Oregon 0 1 7 

Washington 0 4 11 

Territories 

Ame,ieanSamoa 

C.NMI. 

GUJm 0 

Puerto RI(o JS US Virgin Islands 0 

C N.MJ: Commonwealth of Northern Manana Islands 

U'UnavJilable -: No reported Cases N'No!reportabie NN' Not Nahonally Notifiable Cum (urnulativeyc;lr-to-datecOIHl!S Med:Med!an Ma)(:Maximum 

• Cil~!'(Ount\ for r"porting ye¥ 10\0 arid 2011 are provIsIOnal and subject to change for further InformJt!on on InterprNiltion ofthe>f:' dJ(a, see http://www.cdc.qovlncphl/dISlslnndss! 

ph,f/Hes/Provlslonil/Niltlona%20NO(ltiab/eDlseas€":;5ufV(:'lltanceDatalO100927.pdf. Daw forTB are d,sp!ayed 10 Table IV, which appedfS quarlt'i!y. 

I !ndudes drug H:>!SI<l1l1 ~nd ~ust€"ptible t<lS€".> of invaSive Strepto(O(cu~ pnel)moni<l.e dl:;ea,e ilfnong children <5 yeJrs "nd among all <lge5 Case definItion' lso/<l.t,on o( S pneumonlae ('om 

"II01m,,!1y stlmle body lite (e.g .. blood or cerebrospina! flUId) 

'I (onl"'n$ data reportf:'d Ihrough the National ElectroniC DI~eaw Surveillance System (NEDS5) 

i\.~MWIi / JJnu<1ry 14,2011 Vol.60 ! NO.1 31 
257 


75050.210

MorbIdity ;md Morta!11yW,->pkly Hepon 

TABLE II. (Continued) Provisional cases of selected notifiable diseases, United States, weeks ending January B, 2011, and January 9, 2010 (1st week)'" 

Reporting area 

United St<lte~ 

New Eng!and 

ConneCllCut 

Maine" 

Massachusetts 

New H<lmp~hlf(' 

Rnode!slaf'\d~ 

Velmont~ 

Mid. Atlantk 

Ne",Jersey 

Nf'w'lork(Upstate) 

NewYorkCity 

Penn,ylvanla 

LN. Centra! 

1IIIno!~ 

Indiana" 

Mlch.gan 

OhIO 

Wi,(on'>ln 

W.N.Centra! 

Iowa 

Kansas~ 

Mirmesota 

Missouri 

Nebraska§ 

NortnDakota 

SouthD"kota 

S.Atlantic 

Delawale~ 

DistrictofColumbia 

Flonda~ 

GeO!g!<I 

Maryland§ 

North Carolina 

SouthCalohna§ 

V'rg'nla~ 

WestVlrg,nla 

E.S.Cenlral 

Alilbama§ 

Kentucky 

M1SSIS>!ppi 

Tenness<'e§ 

W.S.Central 

Arkansas§ 

Loulsldna 

Oklahoma 

Texa5~ 

Mountain 

Arimn,) 

Colorado9 

Idaho§ 

Montana~ 

Nevddd~ 

New Me~j(o~ 

Utan 

Wyoming§ 

Padfl( 

A!a~k,l 

California 

Hawaii 

Oregon 

Washington 

Territories 

Amer>canSamOil 

eN.M.1 

Guam 

PuertoRlCQ 

US. Virgin Islands 

Current 

week 

62 

11 

41 

3 

26 " 

10 

N 

10 

N 

Varlcel~(hjckenpo){)§ 

Previous 52weeks 

Me<! Max 

282 

14 34 

5 20 

0 

0 

32 

8 

0 

0 

23 

98 

" 5 

31 

" ) 

" 0 

4 

0 

8 

0 

0 

1 

35 

0 

0 

16 

0 

0 

0 

0 

10 

8 

5 

5 

0 

0 

0 

43 

2 

2 

0 

" 20 

0 

B 

0 

3 

" 1 

B 

3 

10 

62 

30 

o 

1 

40 

176 

" 35 

62 

" 22 

31 

o 

22 

o 

23 

o 

10 

) 

100 

3 

4 

5) 

o 

o 

o 

35 

29 

26 

22 

22 

o 

2 

o 

m 

12 

5 

o 

171 

36 

o 

18 

o 

17 

o 

8 

17 

3 

6 

5 

2 

30 

o 

(om 

2011 

62 

11 

11 

41 

3 

26 " 

10 

N 

10 

N 

C N MI· Commonwealth of Northern Mariana Islands. 

(om 

2010 

225 

" 2 

5 

1 

30 

16 

N 

14 

101 

lB 

6 

31 

34 

1 

13 

N 

8 

21 

N 

6 

33 

16 

N 

5 

N 

3 

NeuroinvaslVl! 

Current PreviousS2weeks 

week Med Max 

19 

3 

9 

) 

3 

14 

10 

2 

6 

1 

1 

1 

" 3 

3 

0 

15 

18 

13 

5 

0 

0 

WestNi!eviru~disea5et 

Current 

week 

Non.n-euroinvasive' 

Previous 52 weeks 

Mod 

o 

o 

13 

6 

2 

" , 

11 

1 

U· Unavailable. ~·No reported ca>e~ N: Not reportah!e NN: Not Nationally Notifiable Cum· Cumulative Y@i1Ho+datecounts. Med: Median. Max· Maximum 

(om 

2011 

• Case wunts for reporting year 201 0 and 2011 Me provisional and subject to change. For further mformation on interpretatIOn of tnese data, ,ee http://www.(dcgov/n(pnifdisss/nndss/ 

phs/file~(PfovisjonaINationa%20NotitiableDbeasesSurveiHanceOatalQ1Q0927.pdf. Dilta forTE are displayed in Table IV, which appears Quorteriy. 

t Upddled weekly ffOmreport~ to the DiVl~ion of Vector-Borne Infectious Diseases, Ndtional Center for Zoonotic, Vettor·Bome. and Entefic Diseases{ArboNtT 5urveillancc:l Diltil for California 

serogroup, castern equine, Powassan, St.louis, and western equme dlscase5 MC availnble in Table I 

S ContillnS diltil reported throu-gh the Natlona! Electronic Disease SUf\l(!lllance System (NEDS$) 

, Not reportable In all states. Data from ~tate~ where the condition is not reportable are ex(!uded from this table, except startmg In 2007 for lh~ domestic arboviral diseases and mfluenzaassociated pediatric mortality. and m 2003 for SARS·CoV. Reporting exceptions are available "t http://wwwcdcgov/l1cphl/disss/nnd,s/pns/inldishtm 

M~~,Wr1 i )Jl1u.lry 14, .W 11 i Vol. 60 " No 
258 


75050.211

Morbidity dnd Mort,,!ny Weekly Repon 

TABLE III. Deaths in 122 U.S. cities," week ending January S, 2011 (1stweek) 

All causes, by age (years) 

All P< PM' 

Reporting area Ages "5 45-M 25-44 Total fleporting art'a (Conrinued) Ages :e6S ToUlI 

New England 682 "9 38 " S.Atlantk 1,)86 928 '" 85 31 13 95 

Boswn.MA In '" 39 9 3 19 Atlanta.,GA 152 103 36 

Bndgeport,CT U U U U 113 " 26 12 

Cambridg~,MA 21 17 1<3 101 28 

FdllR'VN,MA " 39 140 

H<lItford,CT 57 37 117 72 29 10 

Lowe!1,MA 32 14 58 3 

lynn.,MA 9 5 " 14 

New Bedford,MA 41 62 38 

New Hilven,CT 51 33 12 71 " 17

ProVldence,RI 71 204 144 11 14 

50merv,tle,MA 3 111 69 31 9 6 

Sp"ngfu"ld,MA 27 14 12 2 

Waterbury,(T 11 18 995 ;S9 2S3 " 22 100 

Wmce,ter,MA 68 165 34 6 3 23 

Mid. Atl<ln.tic 2,450 1,741 541 104 " 21 158 " 61 2C 3 8 

Alban.y,NY 51 33 13 3 1 '" 102 36 

Alientol'lfl.PA " 32 2 " 59 29 6 

Buffalo. NY 120 B6 24 10 220 1<4 23 

Cdmdell,NJ 45 3 75 48 15 3 

EhzJbNh,NJ 11 11 20 13 6 

Enc-.PA 60 40 1 176 108 52 5 15 

JE'rseyCity,NJ " 11 5 1,411 348 31 25 82 

t>.IewYorkClty.NY 1,444 J17 49 2l 10 82 107 30 10 2 

Newark,NJ 39 0. 5 5 3 2 51 11 1 

71 50 14 4 6 

93 " 13 198 95 23 11 22 

5 133 " 29 1 

" U U U 91 58 23 

5 " 68 49 

28 21 4 U 

90 75 13 321 226 71 11 

4l 27 10 <5 17 13 " 3 

1 180 116 46 4 11 

3' 25 1 U)~ 8<6 m 24 21 102 

2,269 1,557 136 4< " B1 21 6 

50 41 2 I 2 

Canton,OH 30 06 " 250 17' 43 26 16 79 54 

87 64 15 3 267 172 65 24 

3'1 247 22 38 31 6 

'" 100 16 13 164 113 39 17 13 "6 " 10 52 36 10 5 

211 67 17 16) 106 34 15 15 

" )5 11 166 35 1 

" 17 2<077 1.434 121 43 2G9 

8 1 3 12 12 1 

47 12 11 103 3J 14 12 

215 132 57 15 12 36 6 2 12 

118 68 39 " 79 " " 54 14 " 4 

52 '" m 11l 75 38 

" 57 18 5 39 136 83 32 

103 76 25< " 36 

" 116 169 35 2R 

577 15 139 89 39 

72 18 3 244 161 48 25 

" 10 10 

12 39 

102 27 10 51 6 

61 51 7 121 92 

79 21 3 

103 " 19 11 Total' 1.3,341 9,lS7 3,()()2 733 183 1,025 

75 41 9 

Adeathlsfeportedbytheplil,eof\t~ocC\Jm'n(eaf1d 

MMI,\,f{ i ),)l1l1dry ]4, 20J 1 Vol 60 i No, 1 33 
259 


75050.212

Mod)l(llty and ,'viOl tahty Vkekly Repul t 

TABLE IV. Provisional cases of selected notifiable disease," United States, fourth quarter ending January 1, 2011 (52nd week) 

Tubl!rculosist 

Currl!nt Prl!vlous4 quarter~ 

Reporting area quarter Mm M" Cum 2010 (um2009 

United States 1,:>04 1,504 2:,467 8,079 11,371 

New England 65 65 95 J22 390 

COrlnectlCut 17 16 2l 76 9S 

3 0 4 8 9 

39 39 60 200 140 

1 1 4 9 16 

3 3 11 25 24 

1 a 1 4 6 

312 312 <06 

106 47 

N 34 '" 61 

110 90 195 

57 52 57 

E.N.Central 9Z 92 137 696 911 

lIimolS 0 107 m 413 

Indiana 12 13 12 92 119 

Ml<hlgart a 44 114 137 

OhIO 49 12 51 183 178 

Wlscol1sin 11 11 17 55 65 

W.N.Central 44 61 219 354 

IOW3 a 8 19 41 

Kan~<I~ 0 1 1 &4 

Minnesota 12 25 40 128 161 

Missouri 7 3 12 3J 32 

Nebraska 5 3 8 13 32 

North Dakota a a 5 

SoulhDakota 0 7 15 18 

286 286 519 

0 7 , 6 14 

98 98 133 818 

3J 33 '" 414 

65 41 65 

a 0 '" 246 

28 10 53 '" 164 

53 44 n 114 172 

1 1 7 15 19 

£,S.Cetltral 111 97 152 498 568 

Alabama 27 27 41 145 168 

Kentucky 9 0 28 53 75 

MIssissIPPI 16 18 34 106 122 

Tenne~>ec 50 37 55 194 203 

W.S.Central 405 1,OS6 

Arkansas , 4 16 50 

lOUISIana 28 7 63 ISO 

Oklilhoma 13 13 21 63 

Texas 11 11 312 793 

Mountain 139 70 148 474 568 

ArIlonil 59 37 72 125 233 

Colorildo 15 8 25 61 79 

Idaho 3 0 8 13 18 

Moot"lla 0 4 5 0 

Nellildd 1 45 104 106 

N~wMexico 11 10 14 46 

Utah 4 1 9 18 " 14 

Wyommg 0 2 2 ) 

Pacific 399 399 446 1,715 2,883 

Alaska 0 0 37 

(a!!foml<l 297 197 335 1.2:94 2:,3BS 

l-1awall " 11 34 110 

Oregon '" " 19 14 85 B8 

Wash'flgton 46 05 <56 

Temtorie$ 

AmencanSamoa 3 3 

CNM.I 8 20 32 

Guam 0 0 100 

PV('(toRKO 16 16 12 74 63 

us. V,rg'n hlands 0 a 

C.N.M I. CommonweJith of Northern Manana !sland5 

U Unallallable -: No reported ca$es, N: Not reportable, NN: Not Nationally Notl/i3bje. Cum: Cumulative year·to·date counts Med'Median Max: M~ximum 

• CDC is In the process of upgrildlng ttl!' national surVE'iUance dilta management system for humall immunodeficiency virus/acquired immunodefiCiency syndrome As a re~u!t. the quarterly 

data scheduled for this I%U,", ofMMWR IS not being published in Tabl elV 

t CDC (s ,n the pmcess aflmp!ementing Public Health lf1formatlOfl Nl'twork tuberculosIs (TBj case notlfi<atlon message $tandard~, which will Simplify reporting ofTB cales As a result, 1B 

PlOvl,jonal Pl(Jdence counts are now reported from the Naliollal Electrolll( Disease SurvelliarKe System {NEDSS) ilnd the Tub .. rculosis InfO/mation Management System (TIMS) data sources 

PrevJou,ly, prolilsiona!TB !nodenc!;' (OUllts we'E' reported through the National Ele(tloni(T('I~(ommUnlCalioll5 System for Surveillance (NETSS). The TB prolllslonallOCldellce counts are 

low III ~ome '<,par ling )lIflsdlCtlOIlS as these area, COIl\H1ue 10 tat,h up with dil!a !:'ntry illl(i trammlSSlon to CDC du!ing thIS transition 
260 


75050.213

u.s. C;~wcrnmt'nt Pf'iming OHic(': 201 !-723-011/21021 Rq:.ion IV 155:--J; Ol~i9-219') 
261 


75050.214

House Energy and Commerce Committee 

Subcommittee on Health 

Hearing, "Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" 

November 2, 2011 

Questions for the Record for Ms. Jane G. Belford, Esq. 

Questions from the Honorable Joseph R. Pitts 

1. What kind of penalty would a Catholic college or university be subject to if it 

offered a health insurance plan to its employees that did not provide coverage for 

ella and other drugs and devices that the university believes operate in an 

abortifacient manner? 

The interim final rule requires that non-grand fathered plans cover all FDA-approved 

contraceptives, including drugs that, though classified by the FDA as a contraceptive, 

can operate as an abortifacient. It is unlikely, as a practical matter, that a college or 

university would be able to offer a plan that excludes contraceptives because that 

would require securing the cooperation of an insurer (or, if self-insured, a plan 

administrator) to implement an exclusion that the interim final rule forbids. The only 

option would bc cithcr to comply with the mandate in violation of the institution's 

religious beliefs or to drop health plan coverage altogether, therehy placing the 

institution at an enormous competitive disadvantage in attracting and retaining 

employees, and subjecting it to those penalties PPACA imposes upon employers that 

do not offer compliant coverage. 

2. Can you pleasc elaborate upon the conccpt that certain drugs and/or devices can act 

as abortifacients? In particular, can you please provide links/citations to research 

studies indicating mechanisms of action for ella? 

Some drugs and devices approved by the FDA as contraceptives or "emergency 

contraceptives" may also act by interfering with the implantation and therefore 

survival ofthc new embryo, and this is openly acknowledged in the manufacturer's 

package inscrt for these products. This anti-implantation effect is seen as 

abortifacient in Catholic teaching and in the viewpoint of many others. One drug 

recently approved as an emergency contraceptive, known as ella (ulipristal acetate or 

HRP 2000) is a close analogue to the abortion drug RU-486 (mifepristone), and like 

that drug it is seen as being able to disrupt an already implanted pregnancy by 

blocking progesterone. This effect, confirmed in various animal studies, would be an 

abortion by anyone's definition. See A. Tarantal, et al., "Effects of Two 

Antiprogestins on Early Pregnancy in the Long-Tailed Macaque (Macaca 

fascicularis)," 54 Contraception 1 07-115 (1996), at 114 ("studies with mifepristone 

and HRP 2000 have shown both antiprogestins to have roughly comparable activity in 

terminating pregnancy when administered during the early stages of gestation"); G. 

Bernagiano & H. von Hertzen, "Towards more effective emergency contraception?", 
262 


75050.215

375 The Lancet 527-28 (Feb. 13,2010), at 527 ("Ulipristal has similar biological 

effects to mifepristone, the anti progestin used in medical abortion"); European 

Medicines Agency, Evaluation of Medicinesfor Human Use: CHMP Assessmentfor 

Ellaone (2009), at 8 ("Ulipristal acetate prevents progesterone from occupying its 

receptor, thus the gene transcription normally turned on by progesterone is blocked, 

and the proteins necessary to begin and maintain pregnancy are not synthesizcd") and 

16 (in animal tcsts "ulipristal acetate is embryotoxic at low doses"). The European 

Medicines Agency report is available at: 

www.ema.curopa.cu/doCS/Cll GR/document library/EPAR -

Public assessmcnt report/human/OO I 027/WC500023673.pdf . 

3. Rep. Baldwin asked you several hypothetical questions and you expressed 

uncertainty about the answers. If you are now able, please address the following 

questions relating to H.R. 1179, the Respectfor Rights of Conscience Act of 2011: 

a. Could a plan exclude coverage for certain infertility services because the 

plan's sponsor has a religious objection to such a service? 

Thank you for giving me thc opportunity to answer these questions more fully after 

studying the legislation. The shortest answcr to this and thc questions which follow 

is: No morc than it can at present. H.R. 1179 does not preempt, or create an 

exception to, any state or federal law except the Patient Protection and Affordablc 

Care Act of2010 (PPACA). In addition, a plan could exclude specific items only if 

the purchaser or sponsor ofthc plan finds an issuer willing to offer that kind of plan 

the legislation allows such negotiations to take place without the federal government 

dictating onc outcome, but does not require an issuer of a health plan to agree to the 

purchaser's or sponsor's rcquest. 

More specifically. the only list of mandated services issued thus far under PPACA is 

the ncw list of "preventive services," which includes no infertility services. Thus 

health plans are free now to include or exclude those services, for a religious reason 

or any reason, unless another state or federal law creates a requirement in this regard. 

H.R. 1179 will not change this. If the final "cssential health benefits" list to be issued 

by the Department of Health and Human Services in the future includes infertility 

services that violate some religious teachings. a religious exemption could be 

claimed. I am advised that even the Clinton Administration's proposed health care 

reform plan in the early 1990s explicitly excluded IVF from essential services, 

possibly because it is an elective and very costly procedure. 

h. Could a plan exclude coverage for alcohol and drug addiction services 

because a plan's sponsor believes that use of alcohol or drugs is sinful? 

The first paragraph of my answer to (a) is valid here as well. In addition, H.R. 1179 

allows an accommodation only for moral or religiolls objection to "specific items or 

services" themselves, not for an objection to the patient's past conduct. 
263 


75050.216

c. Could a plan exclude coverage for HIV and AIDS patients because the plan's 

sponsor expresses moral objections to homosexuality? 

My answer to (b) is valid here as well. In addition, H.R. 1179's rule of construction 

(creating sec. 1302 (b )(6)(0) of PPACA) references existing provisions of PPACA to 

ensure that health plans still may not "make coverage decisions, determine 

reimbursement rates, establish incentive programs, or design benefits in ways that 

discriminate against individuals because of thcir age, disability, or expected length of 

life," and that they must "ensure that health benefits established as essential not be 

subject to denial to individuals against their wishes on the basis of the individuals' 

age or expected length of life or of the individuals' present or predicted disability, 

degree of medical dependency, or quality of life." The reference in these provisions 

to disability would seem to include IIIV·positive status and AIDS. See U.S. Ocp't of 

Justice, Questions and Answers: The Americans With Disabilities Act and Persons 

With HIV/AIDS (concluding that persons with HJV or AIDS have a disability), at 

hl!Pjby~vw.ada.gQ.Yilll!.P2ihjygandH'S!. 

d. Could a plan exclude coverage for blood transfusions because the plan's 

sponsor is religiously opposed to this medical service even in an emergency 

situation? 

The first paragraph of my answer to (a) is valid here as well. 

e. Could a plan exclude coverage for unmarried pregnant women because the 

plan's sponsor has a religious objection to premarital sex? 

My answer to (b) is valid here as well. H.R. 1179 addresses moral or religious 

objections to "specific items or services," not refusals to provide any care at all for 

classes of people. 
264 


75050.217

,"",THOLIC5 

CHOICE 

IN GOOD CONSCJENCF 

Decernb0f 13,2011 

uS House of RepresentativQs 

c.:ornmlttee on Energy and CommercE.' 

Subcomnlitt~l: on Hl:d!th 

2125 Jiayburn House Office Building 

Washington, DC 20515-6115 

Catholics for Choice was honored to be !'lvited to provIde testimony uS the 

Subcommittee considered the provisions ofthp AffnrdabJe CUI' Art, and srecifiG'lily the 

Preventive Services Rule, as it relates to people of faith, especially CatholICS, and to 

religiously affiliated Institutions. In response to the JoditionilJ quest!Ons raIsed by Mr. 

PJtts in his letter of November ;Jg, 2011, we providt-' lhe foliowing information 

Questions from Representative Joseph R. PIttS: 

1. Your organization advocates for individual choice. Under the terms of the 

Preventive Services Rule, what choice would an individual have to purchase a 

health insurance plan that does not (over services that the individual finds 

morally objectionable (e.g, e.lla and other drugs and devices that the individual 

believes operate in an abortifadent manner)? 

Answer: 

CatholiCS for Choice is not an organization expert in US law in gC'nE:'rdl or thE:' Affordable 

Care Act in rarticular. As such, we are not competent to predict what could happen 

under certam proposals to amend the Affordable Care Act particularly proposals that 

have not yet been settled and that could still change. 

CatholiCS for U'olce's expertisE' lies in ~he widespread support of Catholics for access to 

the fu!1 range of reproductive healthcare services, dS, well as the IH:-'l'U La ~n:.ure lhdl these 

services are truly accessiblt: al"1d affordable, espf>clally for people? with limlt('d ('conomic 

meJns Jrld In places where the C10i(e of health care services are limited. Catholics for 

Choic<' advocates: for the rJ~ht ofindivir.1ual~ to make mardi deCISion:. dllording to their 

conscienc~ about Issues like family planning that have a direct and drarTlJtic impJct on 

their lives a'ld trle lives of their families. CatholiCS for ChOice does not bel·eVE> thal i'ln 

institution, orgdniLdtiOrl or Individuai has the right to make those deCIsions for anotner 

person, or to place additional obstacles in the w(JY of individuals' <lbliity to act upon their 

conscientious deCisions thilt have such an impact on their livf'~ 

It IS our understandiflg thJt the Preventive Services Rule pnhanccs individuals' ability to 

I:Hke more choicp'i ahout tlw he~lthcart-l servin's they nl?f'G ,"Inti wish tn use. At the same 

tlrnc, it 15 our understanding that the PrC'vGntlvc Scrvi((:'s Rule mal\es no demand that that 

IndIVldull!S usc services or medlGltlons"(o which tbey object, for whatever reason, 
265 


75050.218

2. What kinds of penalty would a Catholic college or university be subject to if it offered a health 

insurance plan to its employees that did not provide coverage for ella and other drugs and 

devices that the university believes operate in an abortifacient manner)? 

Answer: 

Catholics for Choice is not an organization expert in US law in general or the Affordable Care Act in 

particular. As such, we are not competent to predict what could happen under certain proposals to amend 

the Affordable Care Act, particularly proposals that have not yet been settled and that could still change. 

However, Catholics for Choice is well-informed about Catholic teaching and tradition; the beliefs and 

opinions of the 68 million Catholics in the United States; and the realities of healthcare delivery and 

accessibility for people who work for or are served by Catholics-affiliated institutions and organizations. 

Some argue that it is not possible for religiously affiliated institutions to comply with the law's requirement 

to include contraceptive coverage in health insurance plans, and that they require an unnecessarily broad 

exemption to allow the institution to deny essential preventive services without being subject to a penalty. 

This is a specious argument. It is a fact that in states with refusal clauses similar to the one proposed for the 

list of women's preventive health care services that must be covered under the Affordable Care Act, Catholic 

health care systems and universities have complied with the law by offering the full range of contraceptive 

coverage totheir employees. As a result, employees of those institutions may choose to utilize or not utilize 

that coverage according to their own beliefs and their individual health care needs, whether for family 

planning reasons or to regulate other health conditions. 

In California and New York, for example, where contraceptive coverage laws include refusal clauses similar to 

those proposed by the Department of Health and Human Services, Catholic institutions provide coverage for 

their employees and students. Catholic Healthcare West, a Catholic health system which operates 40 

hospitals in California, Nevada and Arizona, has offered contraceptive coverage as part of its employee 

health insurance packages since 1997 -two full years before California passed its contraceptive coverage 

law in 1999. In New York, Fordham University, another Catholic institution, includes contraceptive coverage 

in both its employee and student health insurance plans, in keeping with the requirements of a New York 

state contraceptive coverage law. 

Recently, just as the Affordable Care Act promised to allow Americans to keep the coverage that they already 

have, a Fordham University spokesperson stated thatthe university would continue to cover birth control in 

its employee and student plans even if proposed refusal clauses were expanded to allow religiously affiliated 

universities to refuse its employees and students that coverage. We cannot be certain, however, that other 

institutions would keep that promise. 

By providing contraceptive coverage to their employees, these institutions are respecting the moral agency 

of women and men and their ability to make their own moral healthcare decisions by leaving the door open 

for them to follow their own consciences, whether they decide to utilize contraception or not. This deference 

to the primacy of individuals' consciences, respect for all beliefs and commitment to affordable healthcare 

access for all is in keeping with our Catholic tradition and with the beliefs of the majority of the more than 68 

million U.S. Catholics. Indeed, the overwhelming majority of sexually active Catholic women (98 percent) not 

only have used contraception, but the majority of Catholic voters (more than six in ten) support allowing all 

individuals to access affordable contraception by requiring health insurance plans-whether government or 

privately-run-to include contraceptive coverage. 
266 


75050.219

December 12, 2011 

The Honorable Joseph R. Pitts 

1. How does California's contraceptive mandate differ from the mandate 

contained in the Preventive Services Rule promulgated by the U.S. Department 

of Health and Human Services? 

A. Like California's statute, I-II-1S's interim final rule exempts a religious employer 

from its mandate if, and only if, thc employer mcets all of the following criteria; 1) 

its purpose is the inculcation of religious values; 2) it primarily hires people who 

share its religious tenets; 3) it primarily serves persons who share its religious 

tenets; and 4) it is a non-profit organization under Internal Revenue Code section 

6033(a)(3)(A)(i) or (iii), (i.e., it is a "church" or "integrated auxiliary ofa church"). 

California was the first state to enact this crabbed definition of religious employer, 

but its mandate is more narrowly focused than is HilS's. California law requires 

health care and disability insurance plans to include coveragc for prescription 

contraceptive methods only ifthcy also provide coveragc for outpatient prescription 

drug benefits. 

In contrast, lUIS's mandate imposes an unprecedented requirement that all types of 

health plans - including ERlSA plans' - not only include all FDA-approved 

contraccptive methods, it broadens the mandated services to include sterilization 

procedures, as well as patient education and counseling for all women with 

reproductive capacity. Moreover, at least one drug approved by the FDA for 

"contraceptive use," a close analogue to the abortion drug RU-486 (mifepristone), 

can cause an abortion whcn taken to intelTupt pregnancy. 

Hence, the HHS mandate is more sweeping than California's law, or any other 

state's law, both in the scope of plans covered and ill its mandated services. 

2. Do any state laws require contraceptive coverage in health insurance plans that 

do not provide coverage for prescription drugs? 

A. Yes, Colorado and Maryland require contraceptive coverage in health insurance 

plans that do not provide coverage for prescription drugs 

3. Do any state laws require contraceptive coverage in self-insured and ERISA 

health insurance plans'! 

A. No. 

4. How many states require coverage of sterilization in health insurance plans? 

A. One state, Vennont, requires coverage of sterilization . 

• The Employee Retirement Income Security Act of 1974 (ERISA) (Pub. L. 93-406, 88 Stat. 829, enacted 

September 2, 1974). 
267 

Æ 


75050.220

2 

5. How would a conscientiously opposed entity get out from under California's 

contraceptive mandate? Can that entity get out from under this new federal 

mandate? What is the remedy for an entity or individual that objects to this 

federal mandate because of a religious or moral belief? 

A. Until HHS promulgated its Preventive Services rule, there were two ways in 

which a conscientiously opposed entity could get out from under the California 

contraceptive mandate: The entity could either self-insure under ERISA, or it could 

stop provid ing prescription drug coverage altogether. As currently written, the 

HHS Preventive Services interim final rule forecloses both of these options. 

Under HHS's Preventive Services interim tinal rule, as currently written, there is no 

remedy for an entity or individual that objects to this federal mandate because of a 

religious or moral belief.