The Affordable Care Act Does Not “Secure” Contraceptive Coverage

June 30th, 2014

Contrary to popular opinion, the Affordable Care Act itself does not impose a contraceptive mandate. The mandate is imposed by Health and Human Services regulations (there may even be a blog post). The Affordable Care Act charged HHS with defining “qualified” health insurance plans. HHS then, by regulation decided what constituted “qualified” coverage. They determined this included the class of abortiofacients and contraceptives.

So Justice Ginsburg is not correct when she says the “ACA would otherwise secure” contraceptive coverage:

The exemption sought by Hobby Lobby and Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure

As Justice Alito’s question properly framed the issue, it is HHS, and not the ACA itself imposing this requirement:

We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.

It is the regulations that imposes the requirement:

At issue in these cases are HHS regulations promul- gated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substan- tial price.

Congress did not decide to cover these products.

Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012).

In August 2011, based on the Institute’s recommenda- tions, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonex- empt employers are generally required to provide “cover- age, without cost sharing” for “[a]ll Food and Drug Ad- ministration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and coun- seling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertiliza- tion of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.

Likewise, the exemption offered to religious non-profits was carved out not by the statute, but by HHS dictate, largely in response to the outrage from the fact that the original regulation had no exemption. As I noted in this post, it is unclear if HHS had the authority to exempt non-profits, or even for-profit companies, from coverage.

Update: Ed Whelan noted that Justice Ginsburg made a similar mistake at the Second Circuit Judicial Conference:

In her recent remarks to the Second Circuit Judicial Conference, Justice Ginsburgstated that the “question presented” in the HHS mandate cases is: “Can Congresslawfully confine exemptions from contraceptive coverage to churches and nonprofit religion-oriented organizations?” (Pp. 8-9 (emphasis added).) But theHHS mandate, along with its narrow exemption for houses of worship and its (supposed) accommodation for religious nonprofits, is a creation of the regulatory bureaucracy, not of Congress.