The Office of the Commissioner of Information is backpedaling following reports last week that it would not enforce a Wisconsin law mandating that all health insurance plans include contraceptive coverage. Today FFRF filed a second open public records request to learn what’s going on.
An Office spokesperson reportedly said that because of the Supreme Court’s decision in Burwell v. Hobby Lobby, Wisconsin’s contraceptive coverage mandate was “federally pre-empted,” and that the Hobby Lobby case “supersedes [the] state statute.” By all accounts, the Office intended to exempt employers with “religious objections” from obeying state law, and to fail to uphold the rights of Wisconsin women employees under Wisconsin’s 2009 law mandating contraceptive coverage.
That all changed following objections from FFRF and other organizations. FFRF was first to protest, sending a July 21 letter to Commissioner Theodore Nickel. FFRF Staff Attorney Andrew Seidel pointed out the obvious that the Hobby Lobby case does not apply to state law. The Supreme Court ruled in 1997 that the Religious Freedom Restoration Act is unconstitutional as applied to states. Read prior news release here.
A few days after receiving FFRF’s letter, the Office changed its tune, telling news media that employees would still have contraceptive coverage, although it may come from separate insurance coverage if the employer raises a religious objection. No explanation was given by the Office for its spokesperson’s explicit references to the irrelevant Hobby Lobby decision. At least 26 states have independent laws requiring contraceptive coverage according to the National Conference of State Legislatures.
“The Office’s statements are dumbfounding,” said Seidel. “Hobby Lobby has nothing to do with regulating state insurance plans. There can be no pre-emption of state law since the decision very clearly only applies to federal law.”
Commissioner Nickel, according to his bio on the Governor’s cabinet webpage, worked for 18 years in the private religious insurance industry, as director of governmental and regulatory affairs for Church Mutual Insurance Company. The company specializes in insuring churches and religious organizations.
“The decision by the Commissioner of Information — or should we call it the ‘Commissioner of Disinformation’? — raises questions of competence or ethics. Either the Office does not understand basic legal principles or it intentionally misled Wisconsin employers and citizens,” said Annie Laurie Gaylor, FFRF co-president.
“OCI’s comments obfuscate rather than clarify, so we’re requesting records to get to the bottom of this,” added Gaylor.