Monday, March 26, 2012

Attorney General's Opinion on the Contraception Mandate

Recently the Obama administration mandated that all contraception, including abortion-inducing drugs be included in healthcare plans. This raised the question about whether there were any state laws that might come into conflict with the mandate.  After doing some preliminary research, I have found several state statues that may be in conflict with the new mandate.

To that end, I have sent over a request to the Attorney General to get an opinion.  The wording of the opinion and the research can be found below. Thank you to Representatives Kim Hammer and Lori Benedict for signing on to the opinion.

If you know of any other statues that may be in conflict with the new mandate, please contact me at

Here to Serve,
David Meeks


Dear General McDaniel:

I am writing to request your official opinion on the following questions.

1) Would any state statutes and/or amendments, including those I have enclosed with this request, conflict with the Contraception Mandate?

2) Based on Arkansas Constitutional Amendment 68, would the Contraception Mandate prohibit the legislature from appropriating money to entities that may dispense abortion-inducing drugs listed in the mandate?

If there is any way you might expedite your response to this question, it would be greatly appreciated 


---->Amendment 2 § 24. Religious liberty.

 "All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other."

---->Amendment 68 I have been told that a possibility exists Amendment 68 could affect certain grants to hospitals, because we appropriate the money. On a separate note, others I have talked to said that the State Employee Health Insurance probably wouldn't be affected by the Mandate and Amendment 68 because it is considered to be self funded.

State Statues:

---->20-16-601  This deals with abortion and would come into play if they required a physician to administer an abortion inducing drug.

---->23-79-510: (2)  EXCLUSIONS.  Subject to the contractual policy form language adopted by the board, the following services, supplies, drugs, or articles whether prescribed by a physician or not shall not be covered:
                    (R)  Any expense or charge for oral contraceptives used for birth control or any other temporary birth control measures;

Subchapter 11
Equity in Prescription Insurance and Contraceptive Coverage Act

23-79-1101. Title.

This subchapter shall be known and may be cited as the Equity in Prescription Insurance and Contraceptive Coverage Act.

23-79-1102. Definitions.

As used in this subchapter:
               (1)(A)  Health benefit policy means an individual or group plan, policy, or contract for health care services issued, delivered, issued for delivery, or renewed in this state, including those contracts executed by the State of Arkansas on behalf of state employees, by a health care corporation, health maintenance organization, preferred provider organization, accident and sickness insurer, fraternal benefit society, hospital service corporation, medical service corporation, provider-sponsored health care corporation, or other insurer or similar entity.
                               (B)  Health benefit policy does not include:
                                               (i)  Accident-only, credit, specified disease, dental, hospital indemnity, Medicare supplement, long-term care, or disability income insurance policies;
                                               (ii)  Coverage issued as a supplement to liability insurance;
                                               (iii)  Workers' compensation or similar insurance; or
                                               (iv)  Automobile medical-payment insurance;
               (2)  Insurer means an accident and sickness insurer, fraternal benefit society, hospital service corporation, medical service corporation, health care corporation, health maintenance organization, or any similar entity authorized to issue contracts under Title 23 of this Code; and
               (3)  Religious employer means an entity that:
                               (A)  Is organized and operated for religious purposes and has received a section 501(c)(3) designation from the Internal Revenue Service;
                               (B)  Has as one (1) of its primary purposes the inculcation of religious values; and
                               (C)  Employs primarily persons who share its religious tenets.

23-79-1103. Parity for contraceptives.

(a)  Every health benefit policy that is delivered, issued, executed, or renewed in this state or approved for issuance or renewal in this state by the Insurance Commissioner on or after August 12, 2005, that provides coverage for prescription drugs on an outpatient basis shall provide coverage for prescribed drugs or devices approved by the United States Food and Drug Administration for use as a contraceptive.
---->(b)  Nothing contained in this subchapter shall be construed to require any insurance company to provide coverage for an abortion, an abortifacient, or any United States Food and Drug Administration-approved emergency contraception.

23-79-1104. Extraordinary surcharges prohibited.

(a)  No insurer shall impose upon any person receiving prescription contraceptive benefits pursuant to this subchapter any:
               (1)  Copayment, coinsurance payment, or fee that is not equally imposed upon all individuals in the same benefit category, class, coinsurance level, or copayment level receiving benefits for prescription drugs; or
               (2)  Reduction in allowable reimbursement for prescription drug benefits.
(b)  This subchapter shall not be construed to:
               (1)  Require coverage for prescription coverage benefits in any contract, policy, or plan that does not otherwise provide coverage for prescription drugs;
               (2)(A)  Preclude the use of closed formularies.
                               (B)  However, the formularies shall include oral, implant, and injectable contraceptive drugs, intrauterine devices, and prescription barrier methods; or 
  ------->  (3)  Require any religious employer to comply with this subchapter.

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