C. Expanding Access to Gender-Specific Health Care Services in the Private Insurance Marketplace

In addition to expanding coverage through the Medicaid program, the ACA also provides for increased access to gender-specific services, including preventive and wellness services, by including these services as part of the essential health benefits package that must be covered by insurance plans participating in the new health insurance exchanges.  In particular, the ACA requires that *114 qualified health plans cover maternity and newborn care  and prescription drugs and devices,  and it gives the Secretary of Health and Human Services discretion to expand the list of essential health benefits, provided the essential benefits package is “equal to the scope of benefits provided under a typical employer plan.”  Additionally, the ACA requires coverage of certain preventive health services without cost-sharing requirements, including all evidence-based services rated ““A” or “B” by the United States Preventive Services Task Force (USPSTF), immunizations recommended by the Centers for Disease Control and Prevention (CDC), and, with respect to women, additional preventive services and screenings as provided in comprehensive guidelines promulgated by the Health Resources and Services Administration (HRSA).  Final interim regulations detailing the required USPSTF grade “A” and “B” services and CDC recommended immunizations took effect in September 2010.  Non-grandfathered plans are now required to provide USPSTF preventative services, including mammography for women over age forty; chemoprevention for women at high risk of breast cancer; screenings for cervical cancer, gonorrhea, chlamydia, and osteoporosis; and prenatal screenings and counseling, including promotion and support of breast-feeding during and after pregnancy.  Non-grandfathered plans are also required to cover HPV vaccines for both boys and girls at no additional cost.

In 2010, HRSA tasked the Institute of Medicine (IOM) with examining the scope of women's preventive health services graded “A” and “B” by the USPSTF and identifying services and screenings necessary to fill gaps in the USPSTF recommendations.  The HRSA preventive care guidelines, based on the IOM's recommendations,  expanded women's health coverage beyond the essential health benefits package: the guidelines require no additional cost-sharing for annual well-woman visits, gestational diabetes screenings, annual screenings and counseling for sexually transmitted diseases and HIV, domestic violence *115 screening, breast feeding support and supplies including lactation pumps, and HPV DNA testing once every three years, regardless of pap smear results.  The HRSA guidelines also require coverage of all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”  Non-grandfathered plans, except those maintained by religious employers, were required to provide these services with no cost-sharing in the first plan year beginning after August 1, 2012.  Contraceptive coverage is not included in the USPSTF guidelines and was otherwise unavailable as a preventive service under the ACA;  the HRSA guidelines, implemented through the ACA, therefore significantly expand access to reproductive health care for women.

Several faith groups, including the U.S. Conference of Catholic Bishops, strenuously objected to the inclusion of family planning services in the preventive services package.  In response to objections that requiring plans sponsored by religious organizations (not religious employers like houses of worship) to cover contraceptive services would infringe on religious freedom, the final regulations allow non-profit employers with religious objections to abstain from directly providing or financing employee contraceptive coverage.  With regard to insured health plans, including student health plans, the organization should notify its insurer of its objection to contraception coverage.  The insurer then directly provides enrollees with contraception coverage. Similarly, for self-insured plans, organizations will notify the third-party administrator responsible for administering the employer's group health plan of its objection, and the administrator will be responsible for offering employees contraceptive coverage directly, without charge.  The final rule allows employers a grace period to adjust to the new rule, requiring compliance by January 1, 2014.

Some for-profit and non-profit companies and organizations have filed suit against the federal government both before and after the promulgation of this final rule, objecting to required coverage of contraceptive services. To date, non-profit and for-profit companies have filed over eighty lawsuits challenging *116 the ACA contraception coverage requirements.  The plaintiffs in these suits typically allege that the mandate violates the Religious Freedom Restoration Act (RFRA), which requires that strict scrutiny be applied under the Free Exercise Clause of the First Amendment,  as well as the First and Fifth Amendments and the Administrative Procedure Act.  The owners of these companies claim that the entities take on and exercise faith of their owners; just as corporations are persons and are protected by the Free Speech clause of the First Amendment,  so too are corporations protected by the First Amendment's Freedom of Religion Clause.  As of November 1, 2013, four federal courts of appeals have ruled on the issue. In Hobby Lobby Stores, Inc. v. Sebelius, the Tenth Circuit ruled for the plaintiffs, saying that a corporation is a person under RFRA and has rights under the Free Exercise Clause.  Similarly, in Gilardi v. HHS, the DC Circuit ruled that a corporation can exercise religion and is protected in doing so by the First Amendment Free Exercise clause.  By contrast, the Sixth Circuit in Autocam Corp. v. Sebelius ruled that a corporation is not a person who can exercise religion under RFRA,  and the Third Circuit in Conestoga Wood Specialties Corp. v. Sebelius averred that a corporation cannot engage in religious exercise under the First Amendment.  On November 26th, 2013, the Supreme Court granted certiorari in Hobby Lobby Stores, Inc. v. Sebelius.  Arguments will be held in the case on March 25, 2014.