The Poison Pill

California lawmakers have slipped a poison pill into the health benefits programs offered by California employers.

Last year, the California legislature enacted the Women’s Contraception Equity Act (WCEA) (Health & Safety Code Section 1367.25 and Insurance Code Section 10123.196). These statutes, sponsored by Planned Parenthood and other abortion-rights organizations, require group and individual health insurance policies and disability policies that include prescription drug benefits also to include coverage for prescription contraceptives, including abortifacient drugs and devices.

Unfortunately, given the nature of the pill, many California employers may not experience even the slightest indigestion. Those opposed to contraception and abortion however, may have to lop off a portion of their benefits packages to avoid ingesting the pill.

Faced with the dilemma of either discontinuing its prescription drug coverage for employees or continuing to offer it together with prescription contraception coverage, Catholic Charities of Sacramento, Inc. sought relief from the Superior Court, and failing there, from the Court of Appeal. The appellate court rejected Catholic Charities’ federal and state constitutional arguments, and held that Catholic Charities was subject to the law. Catholic Charities of Sacramento, Inc. v Superior Court, ___ Cal.App. 4th ____(2001).

The stated legislative purpose of the WCEA is to “prevent discrimination against women in healthcare insurance.” There are a few things wrong with this premise. First of all, what do contraceptives have to do with “healthcare”, anyway? Pregnancy is not a disease. It is a natural consequence of sexual intercourse between a man and a woman. It would be self-contradictory to describe someone as “a healthy cancerous woman” or “a healthy diabetic woman”. On the other hand, the world is full of healthy pregnant women. Second, what does any of this have to do with “insurance”? Insurance is supposed to protect against perils or risks unexpected and unintended by the insured. No one expects to get cancer, or to be injured in an accident. But buying contraceptives? A person makes a decision to do that. What about prescription drugs taken as preventative treatment for those with medical conditions? Aren’t contraceptives essentially the same thing? No, they are not. A woman’s reproductive years are not an unwanted or unexpected condition such as high blood pressure or a bad heart condition.  They are, essentially, a certainty. It is axiomatic in insurance that you cannot insure against a sure thing.

Third, an attempt to eliminate discrimination in insurance is not only moronic, but oxy-moronic. Discrimination isn’t always a bad thing—only unfair discrimination is. Discrimination is what insurance is all about: those with a worse claim history and/or a higher likelihood of future claims are going to pay more than those with no past claims and/or a lower likelihood of future loss. Sounds fair to me.

And don’t forget that this purported “elimination of discrimination against women” has a flip side. What about the discrimination against women who don’ t use contraceptives, who must pay higher premiums because of the voluntary lifestyle choices of women who do use them? This isn’t risk-spreading — it’s subsidizing. Planned Parenthood tells us that the state should not interfere in people’s “private” choices. However, with this Planned Parenthood-backed law, the state, in the interest of “fairness,” now requires all employers and employees to subsidize the “private” choices of some couples (not just women).

As interested as the court was in preventing discrimination against women in healthcare insurance, it could not find any discrimination against Catholicism or Catholic Charities in the law itself. The court acknowledged Catholic Charities’ argument that Catholicism is the only religion that prohibits artificial contraception. However, the court pointed out, it is for that very reason the only religion which benefits from the “religious employer exemption” which is a part of the WCEA. (Catholic Charities does not meet any of the four criteria required to fall under this narrow exemption.) Therefore, the court concluded, the statute is not an attempt to target Catholic religious practices for unfavorable treatment.

Let’s see if we can apply this logic to the discrimination against women problem. If Catholic Charities should agree to an exception, say, to provide prescription contraception coverage to women over 50, then we could say that while women are the only group burdened by the failure to provide prescription contraceptive coverage, they are also the only group to benefit from the exception. Ergo, no unfair treatment.

The most important thing to remember about this case is that the WCEA does not require California employers — Catholic Charities or anyone else — to provide prescription contraceptive coverage to their employees. They must do so only if the health plan provides outpatient prescription drug benefits. Therefore, the obvious solution is: don’t provide outpatient prescription drug benefits.

Catholic Charities of Sacramento, Inc., as well as other religious employers in California, both private and institutional,must decline to swallow the Legislature’s poison pill.Whatever Catholic social teaching says about a fair wage, it does not countenance complicity in the distribution and use of contraceptives, including abortifacient drugs and devices. When the complaints and cries of outrage come pouring in from employees whose prescription drug coverage has been terminated, their employers should refer them to those who made the pill and slipped it into their benefits packages — the lawmakers. And maybe the employees will remember in November, and we won’t be faced with the “Women’s Surgical Abortion Equity” Act next time.

[Anthony Wynne, J.D., C.P.C.U., is a member of LLDFs board of directors.]