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The HHS Contraception Coverage Mandate: How Did We Get Here?

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August 3, 2012

By Dr. Jozef Zalot PhD.

(First of two parts)

On August 1, 2011, the United States Department of Health and Human Services (HHS) issued its “Interim Final Rules on Preventive Services.” These regulations, intended to clarify provisions of the Patient Protection and Affordable Care Act[i] (PPACA or health care reform act of 2010), required that as of August 1, 2012 health insurers must provide their subscribers with all forms of preventive care.

While on the surface this requirement does not sound problematic, serious concerns have arisen in terms of what HHS included on its list of preventive services. Today, preventive care includes not only physical exams, immunizations, and screenings for cholesterol and diabetes, but also all Food and Drug Administration (FDA)-approved forms of contraception including ELLA and prescription birth control pills. Further expanding the list, and in apparent contradiction to guidelines it submitted only six months earlier, HHS also identified sterilization as preventive care. The practical result of the Interim Final Rules is that contraception and sterilization are now federally mandated as preventive care in all health insurance plans.[ii] In addition to this, HHS took the further step of requiring that all forms of preventive care be included in the student health care plans offered by colleges and universities.

In the months following the release of the “Interim Final Rules,” many organizations (particularly Catholic and other religious organizations) petitioned the Obama Administration for exemptions from the contraceptive coverage mandate. The Administration–despite the fact that it had already granted hundreds of waivers from the PPACA as a whole–refused these requests. In January of 2012, President Obama, through HHS, reaffirmed the binding nature of the mandate, although he allowed employers one extra year to come into full compliance. The Administration’s decision was met with great public outcry, so in February of 2012 the President offered an “accommodation” stating that the cost of contraception would be borne solely by the insurance companies, not employers. However, this accommodation was rejected by mandate opponents because, among other reasons, it is not clear how the funds to pay for contraception would be segregated from the premiums paid by employers. Thus, as things presently stand, beginning in August of 2013 Catholic colleges and universities will be federally mandated to provide coverage for contraception and sterilization in the health insurance plans of both employees and students.[iii]

The HHS mandate poses vexing questions of conscience for any employer, but in particular for Catholic colleges and universities. Belmont Abbey College is an excellent example of the dilemma that institutions face. In 2007 its president, William Thierfelder, removed contraception, sterilization, and abortion coverage from the college’s health care plan, and as a result the institution is facing a lawsuit from the Equal Employment Opportunity Commission (EEOC). Numerous other colleges and universities face the same reality including my own institution, the College of Mount St. Joseph in Cincinnati, OH. Some argue that as contraception is an individual choice, employers, regardless of religious affiliation, have no right to prevent their employees (or family members) from acting in accord with their individual conscience. Others argue that by being legally mandated to provide contraceptive and sterilization coverage, Catholic employers are being forced to (a) act in violation of both Church teaching and their institutional conscience, and (b) materially cooperate in what they consider to be morally evil acts.

The aim of this work is to shed light on this complex issue by exploring the challenges surrounding contraceptive coverage mandates in two separate but interconnected essays. The first offers an overview of how these mandates have become law on both the federal and state levels. The second critiques the mandates on the basis of public policy as well as existing federal law. I should note that these essays do not touch upon questions of religious liberty or individual/institutional conscience. The reasons for this are that the religious liberty and conscience questions have been comprehensively addressed by others, and that the purpose of these essays is to educate the reader about the contraception coverage mandates themselves. Overall, the essays argue that government cannot force a private employer to provide contraception and sterilization coverage when doing so causes the employer to violate its institutional conscience.

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