Since President Obama moved to require Catholic hospitals and universities to offer their employees contraceptive health benefits, Republicans have rushed to accuse the administration of an unprecedented attack on religious freedoms.
None has been more forceful than former Arkansas Gov. Mike Huckabee, who accused Obama of “a direct violation of the 1st Amendment.” But years before the current partisan firestorm, GOP lawmakers and governors around the country, including Huckabee, backed similar mandates.
Twenty-two states have laws or regulations that resemble, at least in part, the Obama administration’s original rule. More than a third had some Republican support, a review of state records shows.
In six states, including Arkansas, those contraceptive mandates were signed by GOP governors.
In Massachusetts in 2006, then-Gov. Mitt Romney signed a healthcare overhaul that kept in place a contraceptive mandate signed by his Republican predecessor. Now the GOP presidential candidate is calling the Obama rule an “assault on religion.”
At the federal level, President George W. Bush never challenged a similar federal mandate imposed in 2000.
The state laws were the product of a campaign by women’s groups and others that began after insurers started covering Viagra for men.
The cause has always drawn more support from Democrats, who pushed successfully in 2010 to include a provision in the healthcare law designed to expand women’s access to preventive services like contraception.
But until recently, many Republicans also supported expanding access to contraceptives, even if it meant angering some religious constituencies.
In 1997, Sen. Olympia J. Snowe of Maine and then-Rep.James C. Greenwood of Pennsylvania cosponsored bills aimed at requiring contraceptive coverage nationally. Seven additional Senate Republicans and 15 other House Republicans signed on to the legislation, though it never became law.
Three years later, the federal Equal Employment Opportunity Commission, which is responsible for enforcing laws against workplace discrimination, ruled all employers with more than 15 workers must cover contraceptives for women if they offer health plans that cover preventive services and prescription drugs.
When Republicans took control of Washington after Bush won the 2000 presidential election, his administration could have challenged that requirement, as it did other mandates.
But in his 2001 confirmation hearings to be attorney general, John Ashcroft told the Senate Judiciary Committee that he would “defend the rule” promulgated by the EEOC.
The original Obama regulation, released in January, went further than any state by requiring that women receive contraceptive benefits without co-pays or deductibles, as required for all preventive care under the healthcare law. But in exempting only some religious organizations, the administration followed what had become the approach used by many states.
The administration would have exempted an employer that “has the inculcation of religious values as its purpose,” primarily employs and serves people of the same religion, and is a nonprofit.
That standard was understood to exempt churches, but not religiously affiliated hospitals and universities.
In the face of fierce blow-back, the administration has since proposed a compromise that makes insurers, rather than employers, responsible for the cost of contraceptive coverage for employees of religiously affiliated institutions.
Congressional Republicans are pushing legislation to exempt all employers from providing contraceptive coverage if it goes against their beliefs.
In 2000, when Iowa became one of the first states to enact a contraceptive mandate, the Republican Legislature overwhelmingly backed the bill, which has no exemption for religious employers of any kind.
Even one of the law’s few opponents did not move to exempt religious employers at the time, records show. Republican Rep. Steve King, a leading conservative who was then a state senator, instead proposed to exempt employers who did not cover Viagra. “We were not fighting the battle over conscience protection then,” King said in an interview this week.
In Arizona, state Rep. Linda Binder, a pro-choice Republican, formed a bipartisan coalition to push her bill, which exempted churches but not other church-affiliated institutions, through the Republican-controlled Legislature. Then-Gov. Jane Hull, a Republican and a Catholic, signed the measure into law.
In New York, a similar law also won GOP support in the Legislature. It was signed in 2001 by Gov. George E. Pataki, another Republican.
Four years later, the Arkansas law easily cleared that state’s Legislature, with help from Republican lawmakers, including two GOP cosponsors. Huckabee signed it in April 2005.
He defended the law in a statement. “Religious employers are not required to comply with this policy,” he said. “My position is, and always has been, that religious entities shouldn’t be forced to pay for contraception.”
But like the original federal regulation proposed by Obama, the Arkansas law did not exempt church-affiliated hospitals and universities. It exempts only “religious employers” that are nonprofit organizations whose primary mission is “the inculcation of religious values,” and primarily employ people who share the same religion, a standard few Catholic hospitals meet.