The State Press reported (March 13, 2012) on Arizona House Bill #2652. Majority Whip Debbie Lesko (R) introduced this bill that grants employers the power to deny health care coverage for contraception based upon the employer’s religious beliefs. This bill, passed out of the Arizona Senate Judiciary Committee 6-2, is a clear reaction to the federal controversy over requiring employers to provide health insurance coverage for birth control. In the case of the federal legislation, after Catholic bishops expressed outrage, the Obama Administration offered a compromise that allows institutions, such as charities or hospitals, that are run by the Catholic Church to opt out; insurance companies themselves would still cover contraception. The bishops are not satisfied with the compromise and are pushing for a broader exemption to include all businesses owned by Catholics. House Bill #2652 essentially implements this religious exemption to the contraceptive mandate included in the Affordable Care Act at the state level.
The Arizona bill, if passed, broadens that state’s 2002 Contraceptive Equity Law. Supporters of the measure frame this bill as protecting religious freedoms, arguing that employers should not have to violate their religious beliefs in order to run a business. This argument clearly places free exercise of religion on one side of a scale in terms of judicial balancing. However, what do we place on the other side of the scale? Would this law violate the equal protection clause? The only employees subject to this restriction and required to share their medical records, information that potentially places them at risk for dismissal for their personal sexual behavior, are women. It is a state law that provides employers with a reason to deny coverage and demand ‘a doctor’s note’; is this state action? The situation is somewhat reminiscent of Shelley v. Kraemer (1948). In Shelley, the Court determined that restrictive housing covenants were unconstitutional under the equal protection clause; the contracts were private, but the enforcement mechanism was the state judicial system. This connection provided a basis for sufficient state action to bring the private contracts within the reach of the equal protection clause. Likewise, without the support of the state law, employers would not be able to demand medical records for all female employees seeking coverage for their contraceptives. So, perhaps the equal protection clause can be balanced against the free exercise clause.
Given that the law allows employers to ask for proof of non-reproductive use for insurance coverage of contraceptives, is there also a right to privacy claim vying against the free exercise claim? Does one person’s religious objections outweigh medical privacy? This aspect of the right to privacy is one of the least controversial. You have a right to refuse medical treatment and, under the Health Insurance Portability and Accountability Act (2003), you have a right to preserve the privacy of your medical records. The only people with access are ones that you approve. Under this state law, women would have to provide access to their employers, whether they wanted to or not, if they want coverage for non-reproductive birth control.
My final thoughts about this proposed law and its implication for women’s rights is whether the right to free exercise or prohibition against the establishment of religion rests on the other side of the scale. Lesko stated that, “We don’t live in the Soviet Union…So government should not be telling organizations or mom and pop employers to do something against their moral beliefs.” But under the proposed Arizona law, employers may gain access to their female employees’ private medical records to determine if their health insurance claims include the cost of contraceptives. This knowledge might well have consequences for the employee, if the employer does not approve of the implications of such information. In these cases, does the employee have similar rights? Or does an employee, in order to have the benefit of income and insurance, have to live by the moral standards of their employer? How far does that standard extend? Dress codes, drug testing, and general professionalism are all deemed acceptable infringements on rights in most contexts, but can an employer demand that her workers attend church or a specific church? Fire or refuse to hire divorced individuals? Is the state, by empowering the moral or religious beliefs of the employer over the employee, supporting or endorsing one religion over others?
 This law provides a limited exception to contraceptive coverage for religious employers that employ or service like-minded individuals or non-profits. Prescriptions for contraceptives for treatment of diagnosed conditions (i.e. endometriosis) cannot be curtailed. (http://reproductiverights.org/en/project/contraceptive-equity-laws-in-the-states accessed on March 15, 2012.)
 Additionally, it has been suggested that since Arizona is an ‘at will’ state in terms of employment, women could be fired for seeking contraception unless it’s for a medicinal purposes. (see http://jezebel.com/5893011/law-will-allow-employers-to-fire-women-for-using-whore-pills accessed in March 15, 2012.)
 There is also the issue that only employees with employers posing religious objections would be subject to the additional scrutiny.
 Of course, this leads to an additional question of federal pre-emption. Has the federal government left any room for state authority given the breadth and scope of both HIPAA and the ACA? This question cannot be fully addressed until after the Court decides if the ACA and/or the individual mandate are constitutional.