Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, February 6, 2012

Federal vs. State Laws on Contraception Coverage

Rick's post links to the comment letter submitted by the USCCB back in August regarding the (then) proposed regulations as a source for more information about the difference between the HHS regulations and the existing state law.

As I've argued before, I believe the HHS regulations contain too narrow a definition of exempt religious employers. And I don't disagree that the federal mandate is broader than that in most states.  But let me correct one factual inaccuracy in the USCCB letter.

It is incorrect to say that "State contraceptive mandates generally exclude self-insured and ERISA plans."  Because of ERISA's preemption of state law, state laws that mandate coverage are framed as insurance regulations that require that plans sold/purchased in that state provide the coverage.  They are drafted that way precisely so that they avoid preemption by ERISA, which excepts from its preemptive scope laws that regulate insurance.  Thus, if an ERISA plan self-insures, it is not subject to the state mandate.  (That part of the USCCB sentence is correct.)  However, if an employer with an ERISA plan uses insurance, that ERISA plan is subject to the state law contraception mandate contained in its insurance code.



Stabile, Susan | Permalink

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