Does Illinois Provide An Exemption For Employers Who Don't Want To Pay For Abortions?

Jun 19, 2020

Last week, the Thomas More Society filed a lawsuit that says the year-old Reproductive Health Act requires employers to pay for coverage of abortion against their will.  The suit says unless the act is declared unlawful and enforcement of it is forbidden, plaintiffs will continue to “suffer irreparable injury."

“The Reproductive Health Act recognizes that abortion is health care, and that providing abortion is health care, not criminal activity.’’ said Jennifer Welch, who is president and CEO of  Planned Parenthood of  Illinois. "The law is important because it replaced very old laws that were in Illinois. And what it simply does is treat abortion care, like all other health care with regulations that reflect current medical standards instead of political views.’’

Among other things, the RHA requires private insurance to cover abortion. The suit says there is no exception to the law for employers who have religious or moral objections to abortion. But the state has a Health Care Right of Conscience Act that is supposed to do just that.

Lawyer Laurie Sobel says one call should have ceased confusion over whether the Illinois Health Care Right of Conscience Act covers employers who don’t want to pay for abortion.

Sobel is with the Kaiser Family Foundation, a nonprofit policy analysis group that focuses on health care and takes no position on the issue of abortion. Illinois is one of six states that require private insurers to cover abortion.   

“Looking at the Reproductive Heath … Act together With the Illinois Health Care Right of Conscience Act, it appears that any private entity that pays or arranges for the payment of health care aervices, to exclude services that violate their conscience, as long as that is done and documented in someplace in the governing documents of an organization or business. So, it appears that there's an exemption for these plaintiffs,” she said. 

“I'm not sure how much communication has happened up until this point between them and the state. If they asked if they qualify for exemption or they just went ahead and filed a lawsuit,’’ Sobel said.

But it is unclear is whether the Pritzker Administration has created a mechanism to respond to respond to right of conscience objections.

Neither the spokespeople for the Department of Insurance or the governor’s office replied to the question and offered no response after repeated attempts to seek comment.

Peter Breen is an attorney with Thomas More Society, which is representing three employers: The Illinois Baptist State Association, a dental practice and trucking firm in the RHA suit.

“During the floor debate on the Reproductive Health Act, legislators claimed that the small businesses, the churches, religious nonprofits, would be able to get out of the requirement of paying for elective abortions. But since that time, there has been no action by the politicians or the bureaucrats to make good on that promise,’’ he said. “So, our employers have nowhere to go except to go to court in order to get relief."

Under the Reproductive Health Act, insurers who offer pregnancy-related insurance must provide abortion coverage, according to Laura Mizner, president of the Illinois Life and Health Council, which is a lobbying group for the health insurance industry.

“The laws that we're using the Illinois laws protecting conscience have been regularly applied by the United States Supreme Court to help protect the conscience rights of people of faith. We are very hopeful for a positive result in court if the Department of Insurance and the Pritzker administration don't back down in forcing these Southern Baptist churches, other independent religious nonprofits and small businesses of faith from having to provide elective abortions in their health insurance policies. “ 

Gov. J.B. Pritzker signs the Reproductive Health Act.
Credit Sam Dunklau / NPR Illinois

“We don't think that religious freedom means that someone's employer should be able to dictate where they get their health care from and what kind of health care, they're able to access,’’ said Ameri  Klafeta, who  is director of the ACLU of Illinois’  Women and Reproductive Rights Project. “But you know, this is really part of a consistent strategy to try to use religion to impose restrictions on the right to access health care It’s the same way that contraceptive coverage requirements are handled for entities that have content-based objections.”

Bob Gilligan takes the opposite view. He is the executive director of the Catholic Conference of Illinois.

“What is the compelling governmental interest in requiring an employer to provide abortion and their health care plans? We would argue, and the Thomas More Society would argue, that there are none. And those employers that are filing suit obviously feel strong enough to come forward and file a suit against the state. So, our hope and prayer is that the court will find on their behalf.”

The More Society filed a suit against the state over the 2017 law that required the state to pay for abortions for women on Medicaid. That suit was dismissed

“It is not at all surprising for an organization that has lost repeatedly to continue to try to find the path to restrict women's access to health care. Their track record in the state is not one of picking the right side of history and of losing in court,” said Kelly Cassidy, who is the Chicago Democrat who was the chief House sponsor of the Reproductive Health Act.   “This isn't the first bill of mine they tried to go to court over and it won't be the last.”

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