The

NEW ENGLA ND JOURNAL

of

MEDICINE

Perspective
april 12, 2012

Warning: Contraceptive Drugs May Cause Political Headaches

R. Alta Charo, J.D.

oster Friess, a conservative political donor, recently discounted the importance of insurance
coverage for contraceptives, saying, Back in my
days, they used Bayer Aspirin for contraception.
The gals put it between their
knees, and it wasnt that costly.
Though his comment stunned
interviewer Andrea Mitchell, it at
least focused on the issue of contraceptives. Most critics of the
federal effort to ensure access to
contraceptives have reframed the
issue as a war on religion. And
as Georgetown University theologian Tom Reese told National
Public Radio in early February,
If the argument is over religious
liberty, the bishops win. If the
argument is over contraceptives,
the administration wins. Indeed, a 501(c)(4) advocacy group,
Conscience Cause, has already

been formed to leverage media to

spur legislative action and promote the view that this debate is
not about contraception, but rather about freedom and the protection of our religious values.
Since the average American
woman spends 5 years pregnant
(or trying to be) and 30 years trying not to get pregnant, nearly
99% of sexually active women
have used birth control. And the
most effective contraceptives
such as the birth-control pill and
intrauterine devices (IUDs) are
unavailable except by prescription,
which makes them part of the
health care system rather than

merely a lifestyle choice akin to

eschewing cosmetics. That such
contraceptives constitute health
care is even clearer when one considers the reduction of maternal
and neonatal morbidity and mortality from the spacing out of
births or the use of oral contraceptives for conditions ranging from
acne to uterine fibroid tumors.
But contraceptives can be
pricey. Birth-control pills can run
$600 per year, and an IUD may
cost $1,000, so many women favor
less expensive, albeit less reliable,
options such as condoms and
even withdrawal. Insurance coverage allows women to have a genuine choice. As the Institute of
Medicine recommended, under the
Affordable Care Act, insured
women will qualify for contraceptives without copayments, as part
of a range of preventive services.

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PERSPE C T I V E

Contraceptive Drugs may cause political headaches

State Policies on Contraceptive Coverage*

28 states require insurers that cover prescription drugs to provide coverage of the
full range of contraceptive drugs and devices approved by the Food and
Drug Administration; 17 of these states also require coverage of related
outpatient services.
2 states exclude emergency contraception from the required coverage.
1 state excludes minor dependents from coverage.
20 states allow certain employers and insurers to refuse to comply with the mandate;
8 states have no such provision that permits refusal by some employers or
insurers.
4 states include a limited refusal clause that allows only churches and church
associations to refuse to provide coverage and does not permit hospitals
or other entities to do so.
7 states include a broader refusal clause that allows churches, associations of
churches, religiously affiliated elementary and secondary schools, and potentially some religious charities and universities to refuse, but not hospitals.
8 states include an expansive refusal clause that allows religious organizations,
including at least some hospitals, to refuse to provide coverage; 2 of these
states also exempt secular organizations with moral or religious objections.
(An additional state, Nevada, does not exempt any employers but allows
religious insurers to refuse to provide coverage; 2 other states exempt insurers in addition to employers.)
14 of the 20 states with exemptions require employees to be notified when
their health plan does not cover contraceptives.
4 states attempt to provide access for employees when their employer refuses
to offer contraceptive coverage, generally by allowing employees to purchase the coverage on their own but at the group rate.
* Information is from the Guttmacher Institute, Insurance Coverage of Contraceptives
(www.guttmacher.org/sections/contraception.php).

The Obama administration exempted houses of worship from

the requirement of offering employees health insurance covering
contraception a more generous
policy than those of many of the
28 states already requiring insurers to cover contraceptives (see
box). But the exemption initially
didnt apply to institutions such as
hospitals and universities whose
fundamental purpose was nonreligious, even if the institution
was affiliated with a religious sect.
Such institutions are typically subject to generally applicable laws
for their nonreligious functions,
such as civil rights laws prohibiting employment discrimination
outside the context of ministerial

1362

functions. And the Equal Employment Opportunity Commission

had already determined that singling out contraception from prescription-drug and preventive-care
coverage is a form of sex discrimination forbidden by Title VII of
the Civil Rights Act, with no exemption for religious employers.1
Nonetheless, amid growing conflict, the administration expanded its exemptions to include religiously affiliated hospitals and
universities, deciding instead that
their contracted insurance companies would be required to cover
contraceptives without any financial support from the institutions.
The goal was to ensure that
women have all the recommended

preventive-care coverage while

eliminating even tenuous financial
connections between religious employers and contraception benefits.
Yet at least seven states Florida, Michigan, Ohio, Oklahoma,
Nebraska, South Carolina, and
Texas are joining lawsuits to
overturn the requirement. And
some states are considering bills
that would allow insurance companies to ignore the federal rules.
Measures in Idaho, Missouri, and
Arizona would extend the exemptions to secular insurers or businesses, and the Senate defeated
a similar measure by a narrow
margin.
Despite the administrations
accommodations, the policys opponents have reframed it as discrimination against religious organizations even against
religion itself. It has thus become
yet another simmering health
care controversy like the debate
over religiously based refusals to
prescribe or dispense contraceptives a debate that remains
unsettled, as witnessed by the
yo-yo pattern of decisions in the
challenge to Washington States
requirement that pharmacies dispense contraceptives. (The latest
decision favored the pharmacists
who did not want to dispense
contraceptives on grounds of personal conscience or religion; the
case is again heading for appeal.)
But the current controversy is not
about a personal reluctance to directly facilitate another persons
action that one believes is immoral, even if the actor does not. Instead, it relates to passive forms
of alleged complicity that are far
more tenuous, and it touches on
the ways in which a multicultural
society cross-subsidizes the choices of its varied citizens. In other

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PERSPECTIVE

words, employee benefits are now

embroiled in the struggle for the
public square.
There are at least two competing views about how to organize
our public institutions, public
places, and public duties. In one
vision, individuals may exercise
their freedom to act on their religious dictates even if their acts
limit access to public goods by
people who follow a different
creed. A police officer, for example, argued in federal court that
he ought not to be required to
provide protection to a casino because he believed gambling was
sinful.2 The competing view is
that people performing public
functions must make themselves
available to everyone, regardless
of personal creed for example,
an airport taxi driver must pick
up passengers carrying duty-free
alcohol even if he or she deems
drinking to be sinful.2 The competition for the public space and
the question of who may be
forced to make some sacrifice
was captured well by Florida Senator Marco Rubio, who argued
that the government cant force
religious organizations to abandon the fundamental tenets of
their faith. . . . If an employee
wants birth control, that worker
could . . . just choose to work
elsewhere.3
Similar reasoning underlies
many arguments for the acceptability of service denials: the patient should simply go elsewhere.
But it is far from a solution when
sectarian-hospital emergency departments refuse to provide
emergency contraception to rape
victims or to perform health-preserving surgeries after incomplete miscarriages. In the past
decade, religiously affiliated orga-

Contraceptive Drugs may cause political headaches

nizations owned nearly one in five

U.S. hospital beds,4 and doctrinal
restrictions at secular hospitals
are growing because of increasing mergers with religious hospital systems.5 A vision of a public space in which every religious
practice blooms might quickly
become one in which a single religious doctrine is imposed.
Institutions opposing the new
policy argue that theyre still financially connected to the contraceptive benefit, in contradiction
to their doctrine. But Americans
dont usually succeed in claims
that the use of their funds in

tional doctrine could be withheld including, it would seem,

ordinary salary.
Given the lack of past controversy over state laws on contraceptive insurance coverage and
the spate of recent efforts to constrict reproductive rights ranging from personhood amendments granting fertilized eggs
the same legal rights as liveborn
children, to mandatory transvaginal ultrasonography before consenting to an abortion, to the
defunding of screening for cancer and sexually transmitted diseases at organizations that sepa-

Some argue that when services are denied,

patients can simply go elsewhere.
But its far from a solution when
sectarian-hospital emergency departments
refuse to provide emergency contraception to
rape victims or to perform health-preserving
surgeries after incomplete miscarriages.
contravention of their religious
views violates their constitutional
or statutory rights: tax resisters,
for instance, have been swatted
down by the courts, even when
they were objecting to state-
ordered killing in the form of
capital punishment or war. And
the objections in this instance are
yet more tenuous: Catholic hospitals and universities are not required to pay for birth-control
coverage. Nonetheless, coverage
in the general benefit package is
considered unacceptable complicity. By this logic, any benefit that
an employee might use to commit an act contrary to institu-

rately provide privately funded

abortion services some observers characterize the debate
over contraceptive coverage as a
war on women. But others point
to litigation about prayer in
schools, Christmas displays on
public lands, and requiring U.S.
aid organizations to offer contraceptive services to rape victims
in war zones as evidence of a war
on religion.
Lets recognize that the current debate is about public health
and contraception. But at the same
time, given the battle over framing, lets also take seriously the
more enduring question about our

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PERSPE C T I V E

Contraceptive Drugs may cause political headaches

public space: whether every religious institution and adherent is

free to act to the point of imposing on others, or whether every
individual is free from being imposed upon to the point of stifling some who would act. This
debate deserves more than partisan sound bites and slogans. Perhaps Friess wasnt too far off,
and the best cure for todays contraceptive headache is for the entire country to take two aspirin
and lay off until after the election.

Disclosure forms provided by the author

are available with the full text of this article at NEJM.org.
From the School of Law and the School of
Medicine and Public Health, University of
Wisconsin, Madison.
This article (10.1056/NEJMp1202701) was
published on March 14, 2012, at NEJM.org.
1. Equal Employment Opportunity Commission. Decision on contraception (http://www
.eeoc.gov/policy/docs/decision-contraception
.html).
2. Charo RA. Health care provider refusals
to treat, prescribe, refer or inform: profes-

sionalism and conscience. Washington, DC:

American Constitution Society for Law and
Policy, 2007 (http://www.acslaw.org/sites/
default/files/Charo_-_Health_Care_Refusals
.pdf).
3. Bolstad E. Floridas Rubio pushes back at
contraception rules under health care law.
McClatchy Newspapers Washington Bureau.
February 5, 2012.
4. Uttley L, Pawelko R. No strings attached:
public funding of religiously-sponsored hospitals in the United States. MergerWatch
Project, 2002 (http://www.mergerwatch.org/
mergerwatch-publications).
5. Abelson R. Catholic hospitals expand, religious strings attached. New York Times.
February 20, 2012:A1.
Copyright 2012 Massachusetts Medical Society.

Medicares Readmissions-Reduction Program

A Positive Alternative
Robert A. Berenson, M.D., Ronald A. Paulus, M.D., M.B.A., and Noah S. Kalman, B.A.

ospital readmissions are receiving increasing attention

as a largely correctable source of
poor quality of care and excessive spending. According to a 2009
study, nearly 20% of Medicare
beneficiaries are rehospitalized
within 30 days after discharge,
at an annual cost of $17 billion.1
Causes of avoidable readmissions
include hospital-acquired infections and other complications;
premature discharge; failure to
coordinate and reconcile medications; inadequate communication
among hospital personnel, patients, caregivers, and communitybased clinicians; and poor planning for care transitions.
Although studies have shown
that specific interventions, particularly among patients with
multiple medical conditions, can
reduce readmission rates by 25 to
50%,2 the Centers for Medicare
and Medicaid Services (CMS)
found that Medicares national

1364

30-day readmission rate did not

change appreciably between 2004
and 2009. Unless they are at full
capacity, hospitals have no economic incentive to reduce readmissions under Medicares diagnosisrelated group (DRG) payment
approach. The Affordable Care
Act (ACA) therefore created a financial penalty for excessive
readmissions at hospitals that
are paid for DRGs. Unfortunately,
this approach may be too weak
to overcome the substantial counterincentives inherent in DRGbased payments It also tries to
change hospitals behavior with
a stick but no carrot, failing to
reward hospitals that improve.
We propose an alternative approach a warranty payment
that provides a stronger business case for hospitals to get
with the program.
Under the ACA, CMS calculates the average risk-adjusted,
30-day hospital-readmission rates

for patients with myocardial infarction, pneumonia, or heart failure using claims data. If a hospitals risk-adjusted readmission rate
for such patients exceeds that average, CMS penalizes it in the
following year for all Medicare
admissions in proportion to its
rate of excess rehospitalizations
of patients for the target conditions. Although the maximum
penalty is set at 1% for 2013,
eventually reaching 3% of a hospitals Medicare payments, the
CMS implementation reduces the
potential penalties in aggregate
to only 0.2% of national Medicare
payments in 2013.3 Payments for
hospitals with below-average rehospitalization rates for all three
conditions wont change. Eventually, CMS plans to expand this
program to include other common diagnoses for which readmissions are theoretically preventable, boosting the financial
effects.

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