Missouri’s Contraceptive Coverage Exemption Statute, the ACA’s Women’s Health Amendment, Federal Preemption, and the Race to the Finish LIne

In August of this year, the Missouri legislature amended the state health insurance statute and  added language requiring that "[a]ny health carrier shall offer and issue to any person or entity purchasing a health benefit plan, a health benefit plan that excludes coverage for contraceptives if the use or provision of such contraceptives is contrary to the moral, ethical, or religious beliefs or tenets of such person or entity." You can see how it will work here: http://www.moga.mo.gov/statutes/c300-399/3760001199.htm.

In October of this year, the Missouri Department of Insurance (DOI) issued an interpretive bulletin advising an effective date of October 12, 2012 and, in short order, has taken enforcement actions against Missouri insurers (health insurance companies doing business in Missouri) for their deference to the ACA's preventive services coverage provision, found at 42 U.S.C. section 300gg-13(a), further developed under the HRSA/HHS guidelines of February 15, 2012.  There, all FDA approved contraceptive methods, are included in the definition of preventive services necessary to women's health. Last week, Fed. Dist. Ct. Judge Audrey Fleissig enjoined further MO
DOI enforcement actions against the member entities of the Missouri
Insurance Coalition caught between the competing mandates. As the
Missouri Insurance Coalition case wends its way toward a decision on the
merits, it does so in the shadow of numerous filed cases pressing the
preemption point.  Does the federal law, as a Constitutional matter, preempt the state statute?

Much ink has also been spilled discussing the exemptions in these rules for religiously affiliated employers. But what about religiously motivated employers — secular (as in non-formally religiously affiliated entities) entities whose owners, operators, and employees see the their religious  vocation in secular life? Those cases are out there as well, most strikingly in an opinion from the E. Dist. of Missouri in O'Brien v. HHS.  There, federal district court Judge Carol Jackson grappled with some important questions. Can a corporation engage in the free exercise of religion?  Is a requirement of indirect financial support of a practice, from which a plaintiff may abstain according to their own religious principles, be considered a substantial burden on plaintiff's religious exercise?  At the end of the day, the court held that a "neutral and perfectly constitutional law may have a disproportionate impact upon religiously inspired behavior" and dismissed the complaint.  Then, the Eighth Circuit granted a motion for a restraining order on ACA implementation until full review could be made of this lower court decision.

As interesting and illuminating as all of this, none of this tells us where this is all likely to end up, though the under-discussion of federal preemption in local press reports gives me pause. This is a teachable moment for the press to educate Missouri's citizenry about federalism, preemption, the United States Constitution, as well as our court system. I do not know what to make of what I'll call the "horse race" theory of judicial opinion reading –interpretation where all the focus is on who passes the finish line first.  As grappling with these thorny issues is much more likely to be a marathon than a sprint, each breathless reporting of another "decision", discussed only in isolation,  misses the mark.

In Constitutional law, it is not so much where you start as where you finish that matters.





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