Kennedy bills appear to undercut Brown

Senator Scott Brown spoke during groundbreaking ceremonies in Boston for the Edward M. Kennedy Institute for the United States Senate in 2010.
Senator Scott Brown spoke during groundbreaking ceremonies in Boston for the Edward M. Kennedy Institute for the United States Senate in 2010.Steven Senne/AP File

The late Senator Edward M. Kennedy sponsored bills in the 1990s and 2000s that would have required all employers who offer prescription drug coverage to include contraception coverage, an action that seems to undercut Senator Scott Brown’s contention that Kennedy shared his views on allowing exemptions based on moral objections.

The most recent version of the bill, in 2005, did not allow for exemptions based on moral objections of churches or other employers. Advocates said earlier bills were similar.

Brown, a Republican in a tough reelection battle, has come under fire from Democrats and one of Kennedy’s sons, former Rhode Island congressman Patrick Kennedy, for invoking Kennedy’s name in support of his position. Brown has cosponsored a bill that would allow employers and insurers to exclude coverage of drugs and procedures that go against their moral views.


Brown does not oppose contraception, but says his bill is about religious liberty.

The Kennedy dispute, focused on the beliefs and actions of a political figure who is no longer alive, has focused on interpretations of sometimes murky sections of legislation he sponsored and on a letter he wrote to Pope Benedict XVI before his death, in which he said, “I believe in a conscience protection for Catholics in the health care field.’’

Interpretation of Kennedy’s beliefs on the issue is further complicated by the fact that not all employers under federal law had been required to offer any health coverage before enactment of President Obama’s 2010 universal health care law, meaning there was less focus on what drugs and services might be exempted from such a requirement.

Kennedy appears to have supported the right of doctors and hospitals to refrain from performing abortions, language that was included in a 1995 health bill he sponsored.

But his son, Patrick Kennedy, and three former aides to the late Massachusetts senator say he never supported allowing employers to exclude health coverage for contraception, as Brown’s measure would do.


“Contraceptive insurance coverage is essential for women’s health,’’ Kennedy, then chairman of the Senate Committee on Health, Education, Labor and Pensions, said during a 2001 hearing on the bill that would have extended insurance coverage for contraceptives.

Patrick Kennedy asked Brown Sunday to pull a radio ad in which he says that Senator Kennedy agreed with his position. Brown refused. Yesterday, he pointed to a 1997 bill, sponsored by both Patrick Kennedy and his father, that Brown said showed both father and son were in support of a moral exemption for employers offering health coverage.

“I have the same position as Senator Kennedy for a conscience exemption,’’ Brown told reporters yesterday during an appearance in Boston. “And, ironically, after doing a little research last night, found out that not only Senator Kennedy, but Patrick filed the same provision.’’

Former aides to Senator Kennedy vehemently disagreed with Brown on that issue yesterday, saying he misinterpreted the 1997 provision.

“This thing is outrageous,’’ said Nick Littlefield, a Kennedy aide who served as staff director for the committee that handled health legislation from 1988 through 1999. Littlefield, also a Democrat, supports Brown’s leading Democratic challenger, Elizabeth Warren. “It’s just breathtaking, the chutzpah,’’ Littlefield added.

The 1997 provision was part of a patients’ rights bill regulating health maintenance organizations. One section, under the heading “protection of religious or moral expression,’’ stated that employers or insurers could advise patients of “coverage’s limitations on providing particular medical services . . . based on religious or moral convictions of the issuer.’’


Brown’s aides say that provision shows Kennedy was aware of the issue and, by including it, endorsing the status quo, which allowed churches to restrict coverage based on moral concerns.

But three former Kennedy aides, two of whom worked for the senator in 1997 and worked on the bill, said the language was included to encourage transparency, in part because HMOs were under fire at the time for preventing doctors from discussing restrictions on their plans.

“We were trying to be very clear,’’ Littlefield said. “Everybody should tell the enrollees what’s going on.’’

Kennedy “was all about expanding health care,’’ he added. “He also felt that an individual Catholic provider should not have to provide an individual service if he had a moral objection. [But] he was never for allowing insurers or employers not to cover health services based on religious objections.’’

Judd Gregg, a former Republican senator from New Hampshire who served on the Senate’s health committee for 17 years with Kennedy, said lawmakers from both parties tried to avoid bills that would open big fights on the conscience issue because the distraction would prevent progress on other health care issues. He said Kennedy knew that churches at the time could exclude coverage based on moral objections and seldom did anything to challenge that.

“The way we handled the conscience clause was always just let it sit,’’ Gregg said. “It was the law.’’


Brown says that Obama’s health care law has now forced the issue, putting religious freedom in jeopardy.

Obama has proposed what he calls a compromise, supported by Warren, which would let religious institutions exclude certain coverage in their plans as long as patients could directly purchase it from their insurance providers.

“We wouldn’t be in this position if we didn’t have Obamacare,’’ Brown said yesterday. “Let’s start with that and the fact that I’ve been trying to repeal it and have voted to do so, and Professor Warren supports it.’’

Noah Bierman can be reached at nbierman@globe.com. Follow him on Twitter @noahbierman.