On Thursday March 1 the Senate narrowly defeated an amendment to a highway transportation bill that would have allowed insurers and employers to refrain from offering health coverage of any service or item if doing so would be against their moral or religious beliefs. The so-called “conscience” amendment (S. Amdt. 1520) offered by Sen. Roy Blunt (R-MO) to the Moving Ahead for Progress in the 21st Century (MAP-21) Act (S. 1813) was tabled by a vote of 51-48.

The Affordable Care Act requires that non-grandfathered health plans cover certain preventative health services, including birth control, without any cost-sharing. A recently-issued rule exempts group health plans and group health insurance coverage sponsored by certain religious employers from having to provide contraception coverage. Other non-exempt religious-affiliated employers – such as religious schools and hospitals – that provide health coverage to their employees have been given an additional year to comply with the requirement that their plans include contraception coverage. During this grace period the HHS intends to develop and propose regulations that will accommodate these religious organizations’ objections to providing contraceptive services yet ensure that individuals who want such coverage receive it without cost-sharing. Specifically, the agency’s planned rulemaking would require health insurance issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer’s plan participants (and their beneficiaries) who desire it, with no cost-sharing.

Sen. Blunt proposed the aforementioned amendment because, according to the text of the measure:

While [the Affordable Care Act] provides an exemption for some religious groups that object to participation in Government health programs generally, it does not allow purchasers, plan sponsors, and other stakeholders with religious or moral objections to specific items or services to decline providing or obtaining coverage of such items or services, or allow health care providers with such objections to decline to provide them.

To this end, the amendment would have allowed health plans and health care providers to deny the provision of coverage of specific items or services if doing so is “contrary to the religious beliefs or moral convictions of the sponsor, issuer, or other entity offering the plan” or if “such coverage (in the case of individual coverage) is contrary to the religious beliefs or moral convictions of the purchaser or beneficiary of the coverage.”

The perceived over-breadth of this amendment had drawn a significant amount of fire. Following the introduction of this amendment on the Senate floor, Sen. Barbara Boxer (D-CA) said: “I want to make it clear to the people who are listening that the Blunt amendment would say that any insurance company and any employer for any reason could deny coverage to their employees. But it is not just about birth control; it is any service.” She continued to explain that the Blunt amendment

would allow any insurer and any employer to deny any of these services for any reason. All they have to say is they have a moral objection. . . . Not only does this open a Pandora’s box, it opens a very dangerous policy. It allows insurers and employers to simply say they have a moral problem with something and they don’t have to offer a list of services. Maybe they will do it because they really have a moral conviction, but you can’t really prove it. Maybe they will do it because they want to save some money. We don’t know. But it opens a very bad situation. We have to table or beat this Blunt amendment. It is very dangerous.

In a statement, HHS Secretary Kathleen Sebelius similarly decried the amendment, stating that it

would allow employers that have no religious affiliation to exclude coverage of any health service, no matter how important, in the health plan they offer to their workers. This proposal isn’t limited to contraception nor is it limited to any preventive service. Any employer could restrict access to any service they say they object to. This is dangerous and wrong.

Meanwhile, a number of separate bills, including the Religious Freedom Restoration Act of 2012 (H.R. 3897; S. 2043) and the Religious Freedom Protection Act of 2012 (S. 2092) were introduced in both the House and Senate in response to the HHS’s contraception coverage rule, and are intended to accomplish the same result as the Blunt amendment.