U.S. Department of Health and Human Services 'contraceptive' mandate controversy (2011-2018)

Sean Murphy*

Introduction

In 2004, Julie Cantor and Ken Baum argued in the New England Journal of Medicine that, to ensure women's access to post-coital interceptives, unwilling health care workers should be compelled to refer patients for services they considered morally unacceptable. Responding to the article, the Project Administrator wrote:

The solutions the authors quite properly seek are not to be found in a form of repression that is uncharacteristic of the best traditions of liberal democracy, but in dialogue, prudent planning, and the exercise of tolerance, imagination and political will. The solutions have costs, to be sure, but in a country where 10 billion dollars is spent annually on hard core pornography, a proportionate investment in freedom of conscience for health care workers is surely not an unreasonable expectation.1

The Journal declined to print the response, but Holly Fernandez Lynch picked up on the point and repeated it four years later in a carefully balanced book about freedom of conscience in health care.2,3 Unfortunately, the message seems not to have been received by Washington politicians and policy-makers later responsible for developing and implementing a scheme to provide health insurance coverage for all Americans. The results were seven years of polarizing controversy and costly litigation that could have been avoided, and an outcome that could have been achieved had the course recommended by the Project and seconded by Fernandez Lynch been adopted.

Background

Statutory framework

Title 42 of the United States Code (U.S.C) is known as the Public Health Service Act. In March, 2010 the Patient Protection and Affordable Care Act amended the Public Health Service Act in the course of wide-ranging health care reforms that were to take effect in 2014.4 Over the next three years a serious controversy developed as the Obama Administration developed plans to use the law to compel payment for insurance coverage of morally contested services, notwithstanding objections based on conscience or religion.

The amended law required all group health care plans (the kind of plan usually offered by businesses or organizations) to offer coverage and fully pay for "preventive services." Health insurance issuers (like insurance companies) were also reqired to make available group and individual plans that fully pay for "preventive services." Preventive services were not fully defined in the law, but the amendment included four categories of preventive services that had to be provided as a minimum (Appendix "A"):

Services recommended by the U.S. Preventive Services Task Force (USPSTF), none of which then (or since) referred to services that were known or likely to trigger conficts of conscience;2,3
Immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention;
Services for infants, children, and adolescents in guidelines supported by the Health Resources and Services Administration (HRSA), an agency of the Department of Health and Human Services (HHS);
Services for women not identified by the USPSTF but included in guidelines supported by the HRSA.

"Preventive services"

HRSA guidelines for preventive services for women did not exist when the Public Health Service Act was amended, so HHS contracted with the Institute of Medicine (now the National Academy of Medicine) to produce a report with recommendations for this purpose.5 The report, issued in 2011, recommended that "the full range of Food and Drug Administration approved contraceptive methods, sterilization procedures and patient education and counselling" be considered as "preventive services" for women of reproductive age.6 The contraceptive services and procedures approved by the FDA included surgical sterilization, contraceptives, and embryocides,7,8,9 all of which were morally contested services known to be of concern to an undetermined number of people for religious and/or ethical reasons.

Regulatory framework

However, the Obama Administration decided that, as a matter of public policy, individual women should not have to pay for these services. Since sterilization and birth control had to be paid for by someone, the Administration decided to force others to pay for them through insurance plans. In consequence, in August, 2011 the HRSA issued "Women's Preventive Services Guidelines" (Appendix "B") and a regulation was promulgated to give them legal force (Appendix "C").

Within the context of freedom of conscience concerns, seven kinds of service were unremarkable. However, the demand that employers provide insurance coverage that fully paid for "contraceptive methods and counseling" was highly controversial for several reasons:

pregnancy was treated as a pathological condition like gestational diabetes, HPV infection and sexually transmitted diseases;
some religious denominations had moral objections to contraception, either absolutely or in certain cicumstances;
"contraceptive methods" as defined by the FDA were not limited to contraception, but included contraceptive sterilization, which was considered gravely wrong by some religious denominations, either absolutely or in certain circumstances;
"contraceptive methods" as defined by the FDA included methods that might not prevent conception, but cause the death of a human embryo. A number of religious denominations had strong moral objections to causing the death of an embryo, considering it the moral equivalent of abortion.

While the regulation had immediate effect, it described the requirements as "Interim final rules" (emphasis added) because the Department invited comments from the public for 60 days that, in theory, could lead to amendment of the rules.

Developing opposition

The regulation included an exemption to accommodate religious beliefs in the case of "the unique relationship between a house of worship and its employees in ministerial positions," but its narrow definition of religous employer failed to exempt other denominational organizations and institutions, like hospitals, schools and charities. The rules were supported by groups like Naral Pro-Choice America,10 the Center for Reproductive Rights,11 the Religious Coalition for Reproductive Choice12 and the American Civil Liberties Union,13 which had, for years, opposed protection of conscience policies and laws related to abortion and birth control for health care practitioners and institutions. However, strong opposition was expressed by many others during and after the consultation period (Appendix "D"), including 28 senators,14 60 non-Catholic organizations,15 witnesses at a hearing of the subcommittee of the House Committee on Energy and Commerce,16 and the United States Conference of Catholic Bishops.17

Revolt against the mandate

Notwithstanding the opposition, the Obama Adminstration announced on 20 January, 2012, that the law to force employers to pay for insurance coverage for contraceptive services would take effect in August, but objecting non-profit employers would be given an additional year to comply.18

The announcement generated a revolt against the HHS mandate by religious institutions across the United States. The Orthodox Jewish Union and National Association of Evangelicals were among those who protested within days of the announcement.19,20 The response from the Catholic Church was particularly noteworthy. By the end of the month, over half the Catholic bishops in the country had denounced the plan in letters to their congregations or public statements.21 Many stated bluntly that they would refuse to comply with the law.22

Nonetheless, the White House Press Secretary attempted to downplay the issue during a press conference at the end of January, going so far as to say he did not believe that there were any constitutional rights issues in play.23 The Obama Administration stayed the course while attempting to make it appear that it was seeking a rapprochement with its critics.

On 10 February it issued a statement styled as a "fact sheet," asserting that President Obama would announce a policy "that accommodates religious liberty while protecting the health of women." The statement reaffirmed the contentious regulation, the "grace period" announced by Sebelius in January, and made a number of promises about a new regulation that would not be in place until after US presidential election in 2012. However, the promises were limited to "non-exempted, non-profit religious organizations." In other words there would be no exemption for non-profit religious organizations, nor exemption for individual religious believers and for-profit operations (Appendix "E").

Five days later the Administration published a statement in the Federal Register attempting to justify its approach. For "non-exempted, non-profit religious organizations with religious objections" it proposed to develop a scheme that would have insurers provide objecting non-profit religious organizations with contraceptive-free plans, while simultaneously offering contraceptive coverage directly to the non-profit employees, without charge. However, the Administration refused to exempt individual employers, thus indicating that it intended to compel owners of for-profit operations to pay for contraceptives notwithstanding objections of conscience or religion. The wording and legal effect of the regulation remained exactly as it was when it was announced on 20 January, 2012 (Appendix "F").

Protests continued to come from many people and organizations, including 154 members of the U.S. House of Representatives24 and over 2,500 religious leaders.25 Civil suits were filed against the mandate by state governments,26 and universities.27 In mid-February the US House of Representatives Committee on Oversight and Government Reform heard from 11 witnesses, 10 opposed to the mandate and one supporting it.28

In March the administration published a proposal in the Federal Register indicating how non-profit religious organizations might be accommodated in rules governing the contraceptive mandate. It asked questions and invited comments about how such rules might be drafted. The rule-making process was expected to stretch into 2013, well beyond the November, 2012 presidential election (Appendix "G").

By the third week of May, 2012, 43 Catholic dioceses, organizations and and institutions had filed 12 lawsuits against the U.S. federal government to stop the contraceptive mandate.29 President Obama was re-elected in November, 2012, and, despite continuing opposition, the Administration pressed on.

In February, 2013 HHS published a proposed alternative rule that slightly extended exemption to cover non-profit religious organizations, like religious orders. However, the regulation left exemption entirely at the discretion of the Health Resources and Services Administration, and it denied exemptions for individual religious believers and their businesses. It was also unclear how health insurance companies could be prevented from passing on contraception costs to objecting organizations (Appendix "H").

The final regulation implementing the contraceptive mandate was issued by HHS in July, 2013 (Appendix "I"). Of particular note:

There was no requirement to provide an exemption, and any exemption provided could be revised or revoked by the Department.
Exemptions could apply only to religious non-profit organizations.
- This included institutions of higher education in relation to student health insurance coverage.
- Individual citizens and businesses were not exempted.
No exemption was allowed for conscientious objections that did not have a religious basis. This arguably reflected the U.S. First Amendment, which refers to the free exercise of religion, not the free exercise of conscience.
The regulation did not substantially change the definition of religious employer, though it did appear to extend the exemption to include religious orders.
"Contraceptive services" were defined in legal guidelines, not in the regulation.
Non-profit religious organizations were required to
- certify their objections in writing;
- give insurance companies copies of the certification.
Insurance companies were to provide insurance plans to certified organizations excluding services to which they objected for religious reasons.
Insurance companies were required to bear all costs for excluded contraceptive services, including the cost of contraceptive sterilization, which could be expensive.
- It was not clear how companies were to be prevented from passing on the costs to the objecting organization, or if the government would allow them to deduct the costs from their taxes.

However, the Obama Administration did not have the last word on the subject.

The Supreme Court weighs in

One year later, the United States Supreme Court ruled that the regulation violated the Religious Freedom Restoration Act (RFRA) in relation to "closely held" for-profit corporations (i.e., owned by an individual or small group, shares not usually traded on the public stock market). In effect, the Court held that it was unreasonable to grant objecting non-profit corporations an exemption but deny the same exemption to objecting for-profit corporations. The Court did not rule upon the applicablity of the RFRA to publicly traded corporations. However, the Federal Government's submissions arguing against that possibility were dismissed by the Court with comments strongly suggesting that the distinction of closely held vs. publicly traded corporations was as irrelevant as the distinction between non-profit and for profit corporations. Further, the ruling indicated that the RFRA would similarly protect individuals in unincorporated sole propietorships and partnerships.30

In 2016, seven petitioners, primarily non-profit organizations, asked the Supreme Court for relief from the requirement to provide certification of their objections to the contraceptive mandate to their insurance companies. The Court determined that both the petitioners and Government agreed that it was feasible for employees to be provided with contraceptive coverage without requiring the petitioners to provide certification to insurance companies. Rather than deciding the issues involved, the Court overturned lower court rulings and remanded the cases to them, clearly indicating that the Government and petitioners should be given time to develop a mutually acceptable policy.31

New Administration, new rules

Following direction from newly-elected President Donald Trump,32 the Department of Health and Human Services reviewed the contraceptive mandate and concluded that "expanded exemptions rather than accommodations are the appropriate response to the substantial burden that the Mandate has placed upon the religious exercise of many religious employers."33 In issuing new rules in October, 2017, it summed up the saga of the HHS contraceptive mandate:

Despite multiple rounds of rulemaking, however, the Departments have not assuaged the sincere religious objections to contraceptive coverage of numerous organizations, nor have we resolved the pending litigation. To the contrary, the Departments have been litigating RFRA challenges to the Mandate and related regulations for more than 5 years, and dozens of those challenges remain pending today. That litigation, and the related modifications to the accommodation, have consumed substantial governmental resources while creating uncertainty for objecting organizations, issuers, third party administrators, employees, and beneficiaries. Consistent with the President's Executive Order and the Government's desire to resolve the pending litigation and prevent future litigation from similar plaintiffs, the Departments have concluded that it is appropriate to reexamine the exemption and accommodation scheme currently in place for the Mandate.34

The new rules were, once more, "interim" because they were immediately in force, but subject to revision after public comment. Among the provisions, the new rules

allowed insurers to provide individuals with coverage that did not include contraception;
revoked the requirement for self-certification by objecting employers, making it optional instead;
extended exemptions allowed to objecting non-profit organizations to include for-profit entities and publicly traded as well as closely held corporations.

The key provisions were maintained in the finalized rule published in November, 2018,35 resulting in what Becket Law called a "win-win outcome."

"In the end," said the firm, which had represented the Little Sisters of the Poor, "the government was able to both provide the mandated services free of charge to any woman who wanted them and accommodate the Little Sisters’ religious beliefs."36

An outcome that could have been achieved far sooner, far more cheaply and with far less fuss had the government of the day been committed to dialogue, prudent planning, and the exercise of tolerance, imagination and political will.

Notes

1. Sean Murphy, "Service or Servitude: Reflections on Freedom of Conscience for Health Care Workers" (20 December, 2004), Protection of Conscience Project (website).

2. Holly Fernandez Lynch, Conflicts of Conscience in Health Care: An Institutional Compromise (Cambridge, Mass: The MIT Press, 2008) at 256.

3. Sean Murphy, "Review of Conflicts of Conscience in Health Care: An Institutional Compromise" (19 December, 2009), Protection of Conscience Project (website).

4. Office of the Legislative Counsel, "Compilation of Patient Protection and Affordable Care Act [As Amended Through May 1, 2010] including Patient Protection and Affordable Care Act health-related portions of the Health Care and Education Reconciliation Act of 2010," May, 2010.

5. U.S. Preventive Services Task Force, "USPSTF A and B Recommendations by Date" (January, 2013).

6. U.S. Preventive Services Task Force, "All Recommendations (Published and In Progress)" (2024).

7. Health Resources and Services Administration, "Women's Preventive Service Guidelines" (March, 2024) HRSA (website) at "HRSA-supported Women’s Preventive Services Guidelines: Background."

8. Linda Rosenstock (Committee Chair) et al, Clinical Preventive Services for Women: Closing the Gaps (Washington, DC: The National Academies Press, 2011) at 109-110, Recommendation 5.5.

9. The term "contraceptives," as used in the guidelines (and, thus, the regulation) includes sterilization and drugs and devices that may cause the death of a human embryo before implantation ("embryocide"). For an explanation of this terminology, see Sean Murphy, "Clearing Rhetorical Minefields" (26 January, 2024), Protection of Conscience Project (website).

10. Sean Murphy, "U.S. Food and Drug Administration, Approved Methods of Birth Control" (10 February, 2024), Protection of Conscience Project (website).

11. Sean Murphy, "FDA Approved Methods of Birth Control: Mechanisms of Action"(10 February, 2024), Protection of Conscience Project (website).

12. US, Do New Health Law Mandates Threaten Conscience Rights and Access to Care? Hearing Before Committee on Energy and Commerce Subcommittee on Health, House of Representatives (2 Nov 2011), 112th Congress, Washington, DC: United States Government Printing Office, 2012 [Subcommittee Health 2011) at 46.

13. Ibid at 53.

14. Ibid at 186.

15. Ibid at 83.

16. Letter from 28 U.S. Senators to Kathleen Sebelius, Department of Health and Human Services Secretary (5 October, 2011).

17. Letter from 60 Non-Catholic Organizations to President Barack Obama (21 December, 2011).

18. Subcommittee Health 2011, supra note 9.

19. United States Conference of Catholic Bishops, "Comment on Interim Final Rules (Regulation 45 CFR Part 147 (2011)" (31 August, 2011), Protection of Conscience Project (website).

20. Department of Health and Human Services, News Release, "A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius" (20 January 2012).

21. Union of Orthodox Jewish Congregations, News Release, "Union of Orthodox Jewish Congregations critiques administration denial of expanded exemption for religious entities liberties in health insurance plans" (24 January, 2013)

22. National Association of Evangelicals, News Release, "Evangelicals Disappointed with White House Decision on Conscience Protection" (20 January, 2012)

23. Thomas Peters, "Updated: *106* Bishops Speak Out Against Obama/HHS Mandate" (30 January, 2012), CatholicVote.org (blog).

24. David Yonke & Julie McKinnon, "Bishops condemn insurance mandate: Reproductive coverage at issue", The Blade (29 January, 2012).

25. Sean Murphy, "'It was a pretty extraordinary situation . . .': White House Press Secretary downplays revolt against HHS contraceptive mandate" (31 January, 2012), Protection of Conscience Project (website).

26. Letter from 154 Members of the U.S. House of Representatives to Secretary Kathleen Sebelius, United States Department of Health and Human Services (6 February, 2012).

27. "Thousands of religious leaders voice concerns about HHS mandate" Catholic News Agency (21 February 2012).

28. Tom Cohen, "Seven states sue government over contraceptives mandate", CNN (23 Feb 2013).

29. For example, Ave Maria University, News Release, "Ave Maria University files federal suit to protect religious identity" (21 February, 2012); Alliance Defence Fund, News Release, "ADF, Louisiana College challenge Obama mandate" (20 Feb 2012); Alliance Defence Fund, News Release, "ADF, Geneva College to reveal lawsuit against Obama mandate Tuesday" (20 February, 2012).

30. US, Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience? Hearing Before Committee on Oversight and Government Reform, House of Representatives (16 Feb 2012), 112th Congress.

31. 12 lawsuits, 43 plaintiffs sue US federal government over birth control mandate" (21 May, 2012), Protection of Conscience Project News Portal (blog).

32. Burwell v. Hobby Lobby Stores, Inc, 573 US 682 (2014).

33. Zubick v. Burwell, 578 US ___ (2016).

34. US, White House, Religious Liberty Executive Order, (4 May, 2017) at Sec. 3.

35. US, Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act: A Rule by the Internal Revenue Service, the Employee Benefits Security Administration, and the Health and Human Services Department (2017) 82:47792 Federal Register 47792-47835 at 160.

36. Ibid at 82.

37. US, Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act: A Rule by the Internal Revenue Service, the Employee Benefits Security Administration, and the Health and Human Services Department (2018) 83:57536 Federal Register 57536-57590

35. "Little Sisters of the Poor v. Azar" (2024) Becket (website).