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The HHS Contraception Coverage Mandate: Public Policy Challenges (con’t)

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Concluding Points

Before concluding this section on the public policy difficulties with contraceptive mandates, two final points must be made. The first concerns the possible misleading means by with the HHS mandate came about. The mandate arose from Recommendation 5.5 of the Women’s Preventive Services Committee of the Institute of Medicine, an entity that advised HHS. In the process of drafting its report, the committee held three “open information-gathering sessions” ostensibly to receive expert testimony about what preventive services should be mandated by the 2010 health care reform act. However, most of the invited speakers, those who addressed the committee in an official capacity, were members of organizations that advocated contraception on demand. There was not one invited speaker from the Catholic health care system, this despite the fact that it is the largest health care provider in the United States, and other mandate opponents were relegated to speaking only in brief public comment sessions following the formal remarks. In addition to this, numerous studies from reputable institutions (including Duke University and the Johns Hopkins School of Public Health) which have demonstrated that increased access to contraception does not reduce the rate of unintended pregnancy and abortion were never mentioned in the committee’s report.[44] Also never mentioned were studies suggesting that increased access to emergency birth control led to greater “risk-taking” sexual behavior, and that increased access is associated with higher rates of sexually transmitted disease.[45] The fact of the matter is that there is a wide diversity of scientific (and other) opinion on the issue of mandated contraception. As HHS is charged with setting health care policy that affects all Americans, it is reasonable to assume that the Women’s Preventive Services Committee should have sought a greater diversity of perspective both in its make-up and in the testimony it heard. Unfortunately this was not the case causing many people, including one member of the committee itself,[46] to charge that there was a built-in bias to the HHS findings.[47]

The second point that must be made is that the 2011 HHS mandate is radically new and unprecedented federal law. The General Counsel of the USCCB reports that at no previous time in our nation’s history has a federal law ever required a private insurer to cover contraception. In fact, since 1997 twenty-one bills to this effect have been introduced in the United States Congress, but not one of them ever made it out of committee. The reality is that the Congress has consistently upheld conscience protection with regard to contraception in health care services. For example, every year since 1986 it has prohibited discrimination against foreign aid grant applicants who, due to religious or other conviction, offer only natural family planning. Every year since 1999 it has exempted religious health care plans from contraceptive mandates through the federal employees’ health benefits program, and every year since 2000 it has “affirmed its intent” that a conscience protection clause be part of any contraceptive mandate in the District of Columbia. The HHS mandate overrides these federal protections, as well as the Congress itself, and it does the same thing to legislation passed by the states. Before August 2011 at least 22 states had no contraceptive mandate at all, now they do. Of the 28 states that did have a mandate prior to August 2011, none required contraceptive coverage in every health insurance plan (self-insured and ERISA plans were exempt), today there are no exemptions. Prior to August 2011 no state other than California and Georgia required contraceptive coverage in health care plans that did not include prescription drugs, HHS now requires this. Finally, with the exception of Vermont, no state prior to August 2011 required coverage of sterilization, but once again the HHS mandate now does.[48] The practical result of these realities is frightening. Until August 2011, no federal law had ever prevented an insurer from excluding in its health care plan those services to which it had a moral or religious objection, nor did it prevent insurers from accommodating the moral or religious objections of its purchasers or sponsors. With the HHS contraceptive mandate, this is no longer the case.

About the Author: Dr. Jozef Zalot is an associate professor in the Department of Religious and Pastoral Studies a the College of Mt. St. Joseph. He earned a Ph.D in Religious Studies from Marquette University, an M.Ed. in Religious Studies from the Institute of Religious Education and Pastoral Ministry at Boston College, and a B.A. from St. Anselm College. Professor Zalot also holds an M.Ed. in Sports Management from Springfield College.


[1] Richard George and Christopher Tollefsen, Embryo: A Defense of Human Life (New York: Doubleday, 2008). This text offers a comprehensive philosophical argument for why the embryo is a human being in the earliest stages of its development.

[2] Quotation taken from the United States Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services, 5th ed. (2009), #45, emphasis added. For the philosophic and scientific rationales for the Catholic Church’s teaching that life begins at conception, see Jozef Zalot & Benedict Guevin, Catholic Ethics in Today’s World (Winona, MN: Anselm Academic, 2011) , 205-210.

[3] The Merck Manual of Medical Information employs this understanding of pregnancy when it defines contraception as “prevention of the fertilization of an egg by a sperm (conception) or the attachment of the fertilized egg to the lining of the uterus (implantation).” The Gale Encyclopedia of Medicine does the same when it states that contraception “prevents pregnancy by interfering with the normal process of ovulation, fertilization, and implantation. See Merck Manual of Medical Information, 2nd Home Edition, ed. Mark Beers, et.al. (Whitehouse Station, NJ: Merck Research Laboratories, 2003), 1419; and Gale Encyclopedia of Medicine, vol. 2, eds. D. Olendorf, C. Jeryan, and K. Boyden (Detroit: Gale, 1999), 808.

[4] Supporters of contraceptive mandates often object to the use of the term “hostile” in this context. However, the term is expressly used in the medical and scientific literature.

[5] See the “Full Prescribing Information” for ELLA available on the Food and Drug Administration website at http://www.fda.gov.

[6] Helen Alvare, Gerard Bradley, and O. Carter Snead, “Conscience, Coercion, and Healthcare,” available at http:///www.thepublicdiscourse.com/2011/09/4015.

[7] See http://www.drugs.com/mtm/mifepristone.html

[8] Jeanne Monahan, “Myth and Fact: The Truth about ELLA and How It Works,” available at http://www.frc.org/get.cfm?i=IF10G01. See also Helen Alvare, Gerard Bradley, and O. Carter Snead, “Conscience, Coercion, and Healthcare,” at http:///www.thepublicdiscourse.com/2011/09/4015.

[9]See the FDA label at http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/021998lbl.pdf. It is important to note, however, that numerous health experts (including some Catholic health experts) argue that there is no direct evidence that Plan B prevents implantation. In fact, recent studies have indicated that Plan B has no post-fertilization effect. For more information, see the Catholic Health Association’s “Ethical Currents” (Spring, 2011) available at http://www.chausa.org.

[10] For more information, see Marie Hilliard, “Moral Certitude and Emergency Contraception,” in Catholic Health Care Ethics: A Manual for Practitioners, 2nd, eds. Furton, Cataldo, and Moraczewski (Philadelphia: National Catholic Bioethics Center, 2009), 153-161. See also Jeffrey Jensen, MD, “Contraceptive and Therapeutic Effects of the Levonorgestrel Intrauterine System: An Overview,” Obstetrical and Gynecological Survey 60, no. 9 (2005), 605; and Stabile, 752-753 at notes 47 and 48.

[11] Stanford and Mikolaczyk, “Mechanisms of Action of Intrauterine Devices: Update and Estimation of Postfertilization Effects,” American Journal of Obstetrics and Gynecology vol. 187, no. 6 (December, 2002), 1699-1708.

[12] Peter Cataldo, “Compliance With Contraceptive Insurance Mandates: Licit or Illicit Cooperation with Evil?” National Catholic Bioethics Quarterly (Spring, 2004), 111-112. Cataldo cites numerous medical studies that support this claim (see note 9).

[13] See “Birth Control Pill: Abortifacient and Contraceptive” and “Hormone Contraceptives Controversies and Clarifications” available at http://www.aaplog.org/position-and-papers/oral-contraceptive-controversy/.

[14] F. Anderson, R. Feldman, and K. Reape, “Endometrial Effects of a 91 Day Extended-Regimen Oral Contraceptive with Low-Dose Estrogen in Place of Placebo,” Contraception 77 (2008), 91-96. Quote from p. 91.

[15] J. Bulten, J. Grefte, B. Siebers, and T. Dieben, “The Combined Contraceptive Vaginal Ring (NuvaRing) and Endometrial Histology,” Contraception 72 (2005), 362-365. Quote from p. 365.

[17] Quoted in Walter Larimore, MD and Joseph Stanford, MD, “Postfertilization Effects of Oral Contraceptives and Their Relationship to Informed Consent,” Archives of Family Medicine 9 (February, 2000), 128. See also Cheryl Frye, “An Overview of Oral Contraceptives: Mechanism of Action and Clinical Use,” Neurology 66 (2006) S29-S36.

[18] The contraceptives were Desogen, Ortho-Cyclen, Ortho-Tricyclen Alesse, Cyclessa, and Estrostep.

[19] Larimore and Stanford, 130. The Office of the General Counsel of the United States Catholic Bishops Conference (USCCB) made the same informed consent argument in regards to Ulipristal (or ELLA), the recent FDA-approved “emergency” contraceptive. See Office of the General Counsel of the United States Conference of Catholic Bishops, Comments on the Interim Final Rules Relating to Coverage of Preventive Services (September 17, 2010), 3-4; available at http://old.usccb.org/ogc/preventive.pdf.

[20] The text of the Weldon Amendment is taken from the Office of The General Counsel of the United States Catholic Bishops’ Comments on the Interim Final Rules Relating to Coverage of Preventive Services (August 11, 2011), 6.

[21] The title of the Executive Order was “Ensuring Enforcement and Implementation of Abortion Restrictions in the PPACA”

[22] General Counsel, Comments (August 11, 2011), 6-7.

[23] For example, in International Union, UAW v. Johnson Controls, the issue was a company excluding women from particular jobs out of concern for the health of the employee’s unborn fetus. In Pacourek v. Inland Steel, the issue was the firing of a female employee who used company sick time for infertility treatment.

[24] Law, 365-366.

[25] Stabile, 768-769 and Mandell, 238

[26] Sylvia Law specifically acknowledges this point when she states it is “not possible to document precise connections between insurance coverage for contraception … [and] unwanted pregnancy.” See Law, 393.

[27] Centers for Disease Control, Vital and Health Statistics: Use of Contraception in the United States: 1982-2008 (DHHS publication #2010-1350) Series 23, Number 29 (Hyattsville, Maryland: Department of Health and Human Services, June 2010), 27.

[28] See Frye, “An Overview of Oral Contraceptives,” S29.

[29] Guttmacher Institute, “Facts on Induced Abortion in the United States, August, 2011, available at http://www.guttmacher.org/pubs/fb_induced_abortion.html.

[30] This argument is adapted from Fergus Hodgson’s “Sexually Biased Insurance Mandates: Concealed Taxes Set to Backfire,” available at http://www.fff.org/comment/com1108h.asp.

[31] This is the argument of Susan Stabile, 770-772. See also Mandell, 238.

[32] Law, 374-375. See also the National Abortion Rights Action League, “Insurance Coverage for Contraception: A Proven Way to Protect and Promote Women’s Health” (January 1, 2010), 2; available at http://www.prochoiceamerica.org/media/fact-sheets/birth-control-insurance-coverage.pdf.

[33]Hodgson, “Sexually Biased Insurance Mandates”

[34] Law, 383.

[35] Fragoso, “HHS Birth Control Mandate has No Legal Precedent.”

[36] Frye, “An Overview of Oral Contraceptives,” S29-S36. Further complications identified in the Physicians’ Desk Reference are cited by the General Counsel of the USCCB in Comments (September 17, 2010), 4.

[37] Susan Willis, Nicholas Kristof and Toddlers: When You Really Need a Fact Checker,” available at http://www.thepublicdiscourse.com/2011/11/4265.

[38] WHO, “Carcinogenicity of Combined Hormonal Contraceptives and Combined Menopausal Treatment” (2005); available at http://www.who.int/reproductivehealth/topics/ageing/cocs_hrt_statement.pdf

[39] Susan G. Komen for the Cure, “Birth Control Pills and Breast Cancer Risk,” available at http://ww5.komen.org/ContentNoSidebar.aspx?id=5926&terms=contraception%20and%20breast%20cancer. See also “How Do Birth Control Pills Affect Your Risk of Cancer?” Available on the Mayo Clinic website at http://www.mayoclinic.com/health/birth-control-pill/wo00098/nsectiongroup=2

[40] Susan Willis, Nicholas Kristof and Toddlers: When You Really Need a Fact Checker,” available at http://www.thepublicdiscourse.com/2011/11/4265.

[41] Life Issues Institute, http://www.lifeissues.org/ru486/deaths.htm

[42] I should note that there is disagreement among Catholic ethicists on this point.

[43] General Counsel of USCCB, Comments (September 17, 2010), 2-3. See also Christopher Tollefsen, “Contraception and Health Care Rights” The Public Discourse (Aug. 10,2011); available at http://www.thepublicdiscourse.com/2011/08/3661.

[44] Arland K. Nichols, “Promised Objectivity: Americans Receive Planned Parenthood Ideology,” available at http://www.thepublicdiscourse.com/2011/09/4031. See also the United States Catholic Bishops’ “Greater Access to Contraception Does Not Reduce Abortion” and “Emergency Contraception Fails to Reduce Unintended Pregnancy and Abortion,” both available at http://www.usccb.org.

[45] Sourafel Girma & David Paton, “The Impact of Emergency Birth Control on Teen Pregnancy and STIs,” Journal of Health Economics (2010): http://www.sciencedirect.com/science/article/pii/S0167629610001505

[46] Dr. Anthony LoSasso, the only dissenting member of the committee, underscored this charge in his dissenting report by stating: “The committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through the lens of advocacy. See Nichols, “Promised Objectivity.”

[47] Anna Franzonello, “Abortion Was Always Heart of Health Care Overhaul,” Roll Call (April 19, 2012); available at http://www.rollcall.com/issues/57_124/anna-franzonello-abortion-always-heart-health-care-overhaul-213914-1.html?pos=oopih.

[48] General Counsel of USCCB, Comments (August 11, 2011), 4-5, 16.

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