STEVE INSKEEP, HOST:
Now, for all the controversy over this policy, it turns out that at similar requirement has existed for years, and it's already been tested in court. NPR's Julie Rovner has more.
JULIE ROVNER, BYLINE: One of the things that most frustrates backers of the birth control mandate is that the requirement itself is not so new. Sarah Lipton-Lubet of the ACLU says the only really new part is that for the first time, women won't have to pay a deductible or copayment before they can get contraceptives.
SARA LIPTON-LUBET: But as a legal matter, a constitutional matter, it's completely unremarkable.
ROVNER: What gave contraceptive coverage its first big boost was a ruling by the Equal Opportunity Employment Commission back in December of the year 2000. Two nurses had filed a complaint because their health plan covered other preventive services, but not birth control. In that ruling, the EEOC found that a 1978 law- the Pregnancy Disability Act, or PDA - prevents discrimination in the provision of birth control used to prevent pregnancy, says Peggy Mastroianni, EEOC's general counsel.
PEGGY MASTROIANNI: That the PDA covers not only people who are pregnant, but also discrimination based on the ability to become pregnant, or potential for pregnancy.
ROVNER: Back in 2000, the EEOC also looked at whether failing to cover contraception when it's used for medical reasons - not to prevent pregnancy - violated Title VII of the U.S. Civil Rights Act.
MASTROIANNI: And under that analysis, because these prescription contraceptives are available only for women, everybody who is affected by their exclusion is female, and that is simply straightforward Title VII sex discrimination.
ROVNER: The EEOC ruling - though not technically legally binding on every employer - had an immediate effect. It was cited in lawsuits, and helped accelerate the trend of states passing their own laws requiring contraceptive coverage.
Today, 28 states have such laws. Several of those states have no exceptions at all for religious employers but several do. And in many cases those exceptions look a lot like the one in the rule issued by the Department of Health and Human Services last month.
The ACLU's Lipton-Lubet says that's no coincidence.
LIPTON-LUBET: The HHS rule was modeled on the exceptions in several state laws, including California, New York, Oregon.
ROVNER: Specifically, those states and the new federal rule exempt religious organizations that have as their primary purpose, quote, "the inculcation of religious values," and who primarily employ and serve people of that religion. That means, in practice, that churches, synagogues, mosques and other houses of worship are exempt, but religious hospitals, universities and social service agencies are not. And while lawsuits are now being filed, they're not the first to challenge that distinction.
Lipton-Lubet says the social service agency Catholic Charities sued in both California and New York, in 2004 and 2006, respectively.
LIPTON-LUBET: In both the California and New York cases, Catholic Charities made arguments very similar to the ones that are being made now with respect to the HHS rule.
ROVNER: That would be that requiring them to include contraception in their health plans would force them to violate their religious beliefs.
LIPTON-LUBET: Those arguments failed in that litigation, and they're no more persuasive here.
ROVNER: And in both states, she says, the cases got to each state's highest court, where justices resoundingly found in favor of the contraceptive requirement, and against the idea that it was an infringement of religious liberty.
LIPTON-LUBET: In fact, the litigation in New York was appealed all the way to the Supreme Court. The Supreme Court decided: We don't need to hear that case.
ROVNER: But opponents have said when the government acts, it's a whole new legal ballgame, and as we've seen, certainly a whole new political one.
Julie Rovner, NPR News, Washington.
INSKEEP: So here's where we stand this morning, as reported by our colleague, Scott Horsley: President Obama is about an hour away from announcing a change in his policy on contraception. The new policy will be that women working for religious institutions can still get contraception for free, but they would get it directly from their insurance companies without involving the church. We will bring you reaction to that change as we learn it on NPR News.