Reviewing the Health & Human Services Mandate on Contraception

After more than sixty federal lawsuits, hundreds of thousands of public comments on the Notice of Proposed Rulemaking on Preventive Services from the Department of Health and Human Services (HHS), and much public debate, the controversy surrounding the “HHS contraceptive mandate” continues unabated. Opponents of the mandate call it a “conscience problem mediated through an insurance problem,” an assault on religious freedom, and “the first exception to our national commitment to protect religious conscience in the abortion context.”[1] Those in favor of the mandate accuse conservative churches of trying to impose their religious views on others, warning that those opposing the mandate “are on the losing side of the sexual revolution . . . [and] are taking a risk of turning large chunks of the population against the idea of religious exemptions altogether.”[2] This article will examine what the mandate is, why it matters, and some of the bioethical issues it raises.

At the center of this debate is the mandate issued by HHS in August 2011, that women’s “preventive care” under the Affordable Care Act (ACA) must cover “[a]ll [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”[3] The FDA list includes the “emergency contraceptives” levonorgestrel (Plan B) and ulipristal acetate (ella).[4] There is ongoing debate about the potential of such drugs, as well as some IUDs, to have an abortifacient effect by preventing implantation of a fertilized egg.[5] As a result of the mandate, virtually all employer-sponsored health insurance plans must provide these drugs, devices, and procedures at no cost to plan participants and beneficiaries. An employer that does not provide coverage for the mandated contraceptives faces crippling fines of $100 per employee per day (26 U.S.C. § 4980D(b)) and $2,000 per employee per year if health insurance is dropped entirely (26 U.S.C. § 4980H (a), (c)(1)).

Concerns about Regulatory Process

A preliminary concern is the allegedly rushed and less than transparent manner in which HHS made its controversial determination that contraceptives (including abortifacients) constitute necessary “preventive care” for women. According to lawsuits filed in opposition to the mandate:[6]

• HHS delegated the responsibility of determining what constitutes “preventive care” to a non-governmental organization, the Institute of Medicine (IOM). Furthermore, this involved an alleged violation of the Administrative Procedure Act, which requires HHS to engage in a more formal rule-making process involving a notice and comment period as prescribed by federal law.[7]
• Critics charge the IOM with bias in excluding from the invited presenters groups that oppose government-mandated coverage of contraception and abortifacients. The IOM’s own report contains a dissenting opinion suggesting that the organization’s recommendations were dictated by political considerations and the result of a process conducted in a very short time frame, lacking transparency, and subject to the preferences of the committee.
• HHS announced in a press release (rather than in the Code of Federal Regulations or Federal Register), within just two weeks of IOM issuing its guidelines, that the IOM’s guidelines on preventive care were required under the ACA.
• HHS’s unilateral determination that ella and certain IUDs with potential abortifacient effects are “contraceptives” necessary for a woman’s “preventive care” runs afoul of language in the ACA that the health plan issuer (and not the government) has the right to “determine whether or not the plan provides coverage of [abortion]” 42 U.S.C. §§ 18023(b)(1)(A)(ii).
• Essential to the passage of the ACA was Executive Order 13535 that purported to affirm “longstanding Federal Laws to protect conscience,” and language in the Act itself reconfirms Federal laws regarding conscience protection in the abortion context and specifically provides that the Act “shall not be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential benefits.”[8]

Religious Objectors to the Mandate: Exemption or Accommodation

For those organizations or individuals with religious or moral objections to some or all of the mandated “contraceptives”—including those with pregnancy-terminating mechanisms—there is almost no way to opt out of the requirement to provide coverage for these objectionable drugs, devices, and procedures in their employee health plans. Nor can individual employees/ beneficiaries decline to receive the mandated contraceptive coverage for themselves or their minor daughters.[9] Only houses of worship and their closely integrated auxiliaries are exempt from the mandate.[10] No other organizations, including Catholic and Christian universities, schools, hospitals, nonprofit organizations, and businesses, have a recognized religious or moral exemption to the mandate.

HHS’ final accommodation for some religious objectors raised more religious freedom issues than it resolved. This accommodation[11] applies only to certain “religious” nonprofit organizations.[12] For-profit businesses are specifically excluded from the accommodation, and no provision is made for individuals in those contexts with a moral or conscience-based objection to the mandated contraceptives, abortifacients, and sterilization procedures.

To qualify for the accommodation, an organization must self-certify that it is a nonprofit that holds itself out as a “religious institution” and objects to some or all of the mandated contraceptives on “religious grounds.” The self-certification must specify which contraceptive services the organization objects to on religious grounds. Consequently, any organization desiring to be eligible for HHS’s proposed accommodation must articulate and document the specific drugs, devices, and procedures to which it objects, and, likely, the “religious” basis for those objections.

Under the accommodation, the insurance company, upon receipt of the organization’s self-certification, will automatically issue—at no cost to the objecting organization or plan participants and beneficiaries—contraceptive coverage separate from the organization’s plan to participants and beneficiaries. Setting aside the economic question of whether or not the insurance company will pass the cost of this separate contraceptive policy back to the objecting non-profit in the form of higher premiums (thus effectively requiring the objecting organizations to “pay” for this coverage after all), the accommodation does not satisfy the religious freedom concerns of many organizations. For these organizations, the proposed accommodation does not alter the fact that the organization’s health insurance policy remains the conduit or gateway “in the process of facilitating access to what it believes are gravely immoral products and services.”[13] And even HHS links the insurance company’s ability to “pay” for the supposedly separate contraceptive policies to purported “lower costs” under the objector’s health insurance plan:

Issuers generally would find that providing such contraceptive coverage is cost neutral because they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women’s health and fewer childbirths.[14]

According to HHS, objecting religious non-profits should be adequately shielded from the delivery of contraceptives and abortifacients to which they object on religious grounds if the insurance company automatically issues and pays for separate contraceptive policies for the non-profit’s participants and beneficiaries. Employers argue that the accommodation is inadequate; additionally, concerns of employees and insurers are not addressed. The HHS interpretation of what constitutes an “adequate shield” is the kind of line-drawing that arguably falls outside the province of the government. It is also one of many reasons that the HHS mandate will remain a source of controversy for those who value religious freedom and the sanctity of human life.

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References

[1] Julia Polese, “Becket Fund: HHS Makes a ‘Theological Judgment’ with Mandate,” Juicy Ecumenism: The Institute on Religion & Democracy’s Blog, February 22, 2013, http://juicyecumenism.com/2013/02/22/becket-fund-hhs-makes-a-theological-judgment-with-mandate (accessed June 6, 2013).

[2] Bill Keller, “The Conscience of a Corporation,” The New York Times, February 10, 2013, http://www.nytimes.com/2013/02/11/opinion/keller-the-conscience-of-a-corporation.html?pagewanted=all&_r=0 (accessed June 6, 2013).

[3] 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011).

[4] “Women’s Preventive Services: Required Health Plan Coverage Guidelines,” Health Resources and Services Administration, August 1, 2011, http://www.hrsa.gov/womensguidelines/ (accessed June 6, 2013).

[5] Amicus Curiae Brief of The Association of American Physicians & Surgeons, et al., at 6-14, Hobby Lobby Stores, Inc. v. Sebelius, No.12-6294 (10th Cir., Feb. 19, 2013), http://www.aul.org/wp-content/uploads/2013/02/12-6294-Hobby-Lobby-v.-Sebelius-amicus-brief-of-AAPS-et-al..pdf (accessed August 15, 2013).

[6] Complaint at ¶¶ 129-30, 270, 271, Count VII, The Roman Catholic Diocese of New York v. Sebelius (E.D.N.Y., filed May 21, 2012), http://www.archny.org/media/links/FreedomofReligion_Lawsuit2012.pdf (accessed August 15, 2013).

[7] Ibid.

[8] 75 Fed. Reg. 15599 (Mar. 29, 2010) http://www.gpo.gov/fdsys/pkg/FR-2010-03-29/pdf/2010-7154.pdf; Brief of the Association of Gospel Rescue Missions, et al. as Amici Curiae in Support of Appellants and Reversal at 19-20, Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294 (10th Cir., Feb. 19, 2013) https://www.clsnet.org/document.doc?id=449&erid=366527 (accessed June 6, 2013).

[9] See Letter to Centers for Medicare and Medicaid Services from Anthony R. Picarello, Jr., Associate General Secretary and General Counsel, et al., United States Conference of Catholic Bishops, May 15, 2012, http://www.usccb.org/about/general-counsel/rulemaking/upload/comments-on-advance-notice-of-proposed-rulemaking-on-preventive-services-12-05-15.pdf (accessed June 6, 2013).

[10] As originally proposed, the “religious employer” exemption exempted only a church or integrated auxiliary as described in Sections 6033(a) (1) and 6033(a)(3)(A)(i) or (ii) of the Internal Revenue Code and that (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; and (3) primarily serves persons who share its religious tenets. 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011), codified at 45 C.F.R. § 147.130(a)(1)(iv)(B). In its final form, HHS eliminated these last three prongs of the “religious employer” definition in order to avoid any inquiry into the religious employer’s purposes or the religious beliefs of those it employs or serves. When proposing this rule, HHS expressly excluded any organization from the exemption “if its assets or income accrue to the benefit of private individuals or shareholders” and reasserted the department’s intent to only “exempt the group health plans of houses of worship.” 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013).

[11] The final rule, which was announced on June 28, 2013, and took effect on August 1, 2013, was adopted, without change, and included the department’s proposed “accommodation” for certain “nonprofit religious organizations with religious objections to contraceptive coverage.” 78 Fed. Reg. 39870, 39875 (July 2, 2013), available at http://www.gpo.gov/fdsys/pkg/FR-2013-07-02/pdf/2013-15866.pdf (last accessed August 28, 2013). In so doing, the department expressly stated that it “decline[s] to expand the definition of eligible organizations to include for-profit organizations. 78 Fed. Reg. 39875.

[12] “Coverage of Certain Preventive Services Under the Affordable Care Act,” Notice of Proposed Rulemaking, 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013).

[13] Letter to Centers for Medicare and Medicaid Services from Nikolas T. Nikas, President, CEO and General Counsel, et al., Bioethics Defense Fund, June 15, 2012, http://bdfund.org/wordpress/wp-content/uploads/2012/06/FINAL.Berg_.Capretta.Condic-HHS-ANPR-Comment.6.15.2012.pdf (accessed August 15, 2013). See also May 15, 2012 USCCB Comment Letter.

[14] 78 Fed. Reg. 8456, 8463 (Feb. 6, 2013); “Women’s Preventive Services Coverage and Religious Organizations,” The Center for Consumer Information and Insurance Oversight, Centers for Medicaid and Medicare Services, http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/womens-preven-02012013.html (accessed May 29, 2013).