Catholic Institutions and Contraception Coverage

The EEOC's decision regarding Belmont Abbey College, which Rob addresses, is lamentable, but not surprising. 

The EEOC has consistently taken the position that the exclusion of contraception coverage from prescription coverage constitutes discrimination on the basis of sex and/or discrimination on the basis of pregnancy. What is new here is that the EEOC has not in the past targeted religious employers who do not provide such coverage.

That they do now is not surprising.  We are seeing in all sorts of contexts increasing lack of tolerance for conscience claims of religious institutions.  And this particular issue has already been addressed at the state level to the detriment of religous employers: most state statutes requiring prescription contraception coverage either do not exempt religious employers or draft their exemptions so narrowly that  many religious employers fall outside the exemption.  (As most MOJ readers probably know, Catholic Charities lost cases in both NY and California on this issue.)  In many ways, this unfortunate circumstance is the logical outcome of the Supreme Court's 1990 decision in Employment Division v. Smith.

I should add that the EEOC's stepping in makes the situation worse for relgious employers than merely being subject to state law in this area.  Becuase of the preemptive effect of ERISA, state statutes can only include prescription contraceptive mandates as part of their insurance law, effectively saying: if you want to insure in this state, if you provide any prescription coverage, you must provide contraception coverage.  That means that a large enough religious employer can choose to self-insure and avoid being subject to the state law.  Self-insurance would not, however, sheild a religious employer from action by the EEOC.