According to the defenders of the Obama Administration’s contraceptive coverage mandate, employers and health insurance plans are simply required to cover basic preventive health services for women. The mandate, however, represents so much more.
In the mandate, the Administration legislated its moral vision and values. Indeed, the mandate rests upon moral judgments made by the Administration based upon its conception of the good and the just society. However, the administrative agencies that developed and issued the mandate employed regulatory procedures that hindered public participation and hampered dialogue between policy makers and interested individuals and institutions. In other words, the Administration manipulated regulatory procedures and thwarted what is supposed to be a transparent, deliberative decision-making process. The Administration did this to ensure that the outcome of the process would be what it desired.
Consequently, the mandate should concern Christians and non-Christians alike—and for more reasons than simply the real threat it poses to religious liberty. Both Christians and non-Christians should also be concerned with (1) the procedures employed in adopting the mandate, (2) the shift in health policy implemented through the Affordable Care Act (ACA) and the mandate, and (3) the Administration’s moral decision making that resulted in the mandate.
The Unfair Process That Produced the Mandate
The ACA did not mandate that employers and health insurance plans cover contraceptive services. Rather, the ACA required cost-free coverage of several broad categories of preventive health services, including preventive care and screenings for women as provided in guidelines by the U.S. Health Resources and Services Administration (HRSA). The Obama Administration subsequently adopted regulatory rules implementing this provision of the ACA. It was in these rules that the Administration decided to include all U.S. Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling within the required package of covered preventive health services. The FDA-approved contraceptive methods include Plan B, Ella, and copper intrauterine devices; each of these methods operates after fertilization and can have an abortifacient effect by preventing implantation.
In adopting the mandate, the Administration decided to employ regulatory rulemaking procedures that restricted public participation and prevented a full vetting of the rules before they went into effect. Ordinarily, agencies adopt regulations pursuant to standard rulemaking procedures that require agencies (1) to give the public and interested persons notice of proposed rules, (2) to afford the public opportunity to comment on (i.e., give feedback regarding) proposals, and (3) to review the feedback received, modify proposals based upon the feedback, state in writing the reasons for adopting the final version of rules, and issue the final rules. Upon issuing final rules, agencies specify the effective date.
In the case of the mandate, the Administration utilized a truncated regulatory process that rendered public participation largely ineffectual. First, in July 2010, the Administration issued interim final rules implementing the ACA’s preventive health services provision. The Administration’s decision to issue interim final rules meant that the rules would be effective immediately without the public having an opportunity to comment on any proposed rules. The Administration justified its decision not to follow the ordinary rulemaking procedures and its use of the truncated process by citing federal statutory authority and claiming an urgent public need to make the rules effective immediately. Thus, the administration would not allow a 60-day delay so that the agencies could receive and review comments on its rules before they went into effect; any feedback from the public would be considered at a later time. Although this first set of rules did not mandate coverage of contraceptive and sterilization services, it prepared the way by requiring health plans to cover evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by HRSA, and it indicated that these guidelines were in development and expected before August 2011.
Soon thereafter, the Planned Parenthood Federation of America issued a press release, kicking off a national campaign to ensure that the guidelines would require coverage of all FDA-approved contraceptives. Inside the Administration and at the top of HHS, Planned Parenthood had friends who could ensure this result. For instance, Kathleen Sebelius, HHS Secretary at the time who approved the mandate, was a friend; reports have shown that she had longstanding ties to and received political contributions from the late George Tiller, a Kansas doctor well-known for performing late-term abortions. Additionally, Washington, D.C. attorney and former drug lobbyist William B. Schultz, whose clients at Zuckerman Spaeder LLP included Barr Laboratories, the maker of Plan B, became HHS’s principal deputy general counsel and acting general counsel in 2011 and HHS’s general counsel in 2013.
Second, HHS provided funds to the Institute of Medicine (IOM) to convene a committee to review preventive services for women and advise HRSA. The Committee on Preventive Services for Women (Committee) met five times in six months and conducted three open sessions for members to hear from select women’s health experts and reproductive rights advocates. Planned Parenthood, the Guttmacher Institute, and other pro-abortion groups were well represented among Committee members and invited presenters.
In a short period of time, the Committee produced a report and recommendations. It recommended the full range of FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling (i.e., family planning services) for women with reproductive capacity. One committee member issued a dissenting opinion expressing concern that the compressed period of time prevented the Committee from conducting a serious, systematic review of all evidence for preventive services. Beyond the time constraints, he noted that the Committee’s process “lacked transparency and was largely subject to the preferences of the committee’s composition,” in which “a mix of objective and subjective determinations [were] filtered through a lens of advocacy.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 232 (July 19, 2011).
Third, HRSA’s guidelines and HHS’s second set of interim final rules then came in rapid succession in July 2011. The Administration made the interim final rules effective immediately and afforded a 60-day public comment period after the effective date. Again, the Administration justified its use of a truncated rulemaking process based upon federal statutory authority and an urgent public need to make the rules effective immediately without any delay occasioned by allowing public participation in the process. These rules required coverage of preventive care and screenings provided for in HRSA’s guidelines. In this rulemaking, the Administration addressed for the first time public comments submitted regarding its first set of interim final rules—the public had provided “considerable feedback regarding which preventive services for women” should be covered. Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621 (Aug. 3, 2011). With these rules, the Administration provided HRSA discretion to establish a narrow exemption for religious employers that qualify as houses of worship.
Fourth, in February 2012, the Administration finalized without any change its interim final rules, despite having received over 200,000 comments on its rules and despite dozens of cases filed challenging the mandate. The Administration’s decision to retain the narrow religious-employer exemption came after President Obama personally met with Archbishop Timothy Dolan (now Cardinal Dolan) and indicated that the protection of conscience was a sacred duty and that he did not want to impede the Catholic Church’s work. Along with this rule, the Administration announced that it would afford a one-year safe harbor to non-exempt, nonprofit organizations with religious objections. This safe harbor, in Archbishop Dolan’s view, simply gave religious institutions one year to figure out how they would violate their consciences. The political effect of the one-year safe harbor was to release some pressure and delay some fallout from the mandate until after the 2012 presidential election.
Fifth, once the Administration had succeeded at pushing through the chief part of the mandate, it slowed the rulemaking process down and followed regular procedures as it considered the scope of the exemption and the accommodation for religious employers and other organizations. In other words, when the Administration turned its attention to accommodating religious and conscience objections, it ensured that the public (including those opposed to a religious-employer exemption and any accommodation of nonprofit institutions) would have a full opportunity to comment on agency proposals. In the last set of final rules, which were issued in July 2013, the Administration finalized the religious-employer definition for the exemption and provided an accommodation for some religious nonprofit institutions that requires health plans to provide the covered services at no cost to enrollees.
The Paradigm Shift That Frames Contraception in Public Health Terms
The ACA and the mandate shift the framing of contraceptive and sterilization services from health care to public health. The ACA did this through its mandate that employers and health insurance plans cover preventive health services. The mandate accomplished this by including contraceptive methods and sterilization procedures as well as patient education and counseling services in the preventive health services package. This shift in policy framing is significant.
Health care and medicine focus on individual patients and the physician-patient relationship. In therapeutic relationships, physicians act in the best interest of their patients, providing care to diagnose and treat injury and illness and to cure disease. In the public health framework, focus shifts away from care for individual patients to government efforts to promote the population’s health and to prevent injury and illness. Public health efforts have traditionally aimed to promote the common good by conducting disease surveillance, preventing injury, and controlling and preventing infectious disease.
Over the last two decades, however, progressives have advanced a broader, more comprehensive vision of public health. Acting pursuant to this enlarged vision, progressives have aggressively undertaken to use government power, including its power to coerce conduct, to change socioeconomic conditions, restructure society, and address social and economic “determinants of health.” They have assigned moral force to their agenda by appropriating the language and values of social justice. Indeed, in their view, social justice is one of the central values of public health that inspires their ambitious programs and policies to improve the health of all members of the population and to address “persistent patterns of systematic disadvantage” by altering social and economic conditions. Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint 22 (Revised and expanded Second Edition 2008).
Operating with this robust understanding of public health, present-day progressives pit collective interests against individual interests, employing a utilitarian calculus that favors populations over individuals. This vision of public health is reflected in the regulatory materials accompanying the mandate. These materials indicate that the mandate is intended to further two large social goals: (1) public health and (2) gender equity. The materials also reveal the Administration’s view that expanding access to contraceptive and sterilization services without cost sharing will meet the unique health needs and burdens of women, improve their social and economic status, equalize their standing in the workforce, and reduce unintended pregnancies and medical costs.
The Morality That Was Legislated in the Mandate
For the Administration and present-day progressives, health care reform, which now includes the contraceptive mandate, has been a moral undertaking. In a letter to President Obama written ten months before the ACA was signed into law, the late Senator Edward M. Kennedy expressed the moral vision that has inspired the reform effort. In his letter, he observed that health care reform was “the great unfinished business of our society.” He added that health care “concerns more than material things; . . . what we face is above all a moral issue; . . . at stake are not just the details of policy, but fundamental principles of social justice and the character of our country.” Letter from Edward M. Kennedy, U.S. Senator, to Barack Obama, U.S. President (May 12, 2009), available atwww.whitehouse.gov.
Although the mandate is encased in regulatory, social scientific, medical, and public health terminology, the technical words should not obscure the reality that the mandate legislates morality, as every law and regulation does. Its moral underpinnings become apparent when viewed as a public health initiative. One of the leading experts in public health law and policy has offered the following observation about moral decision making in the field:
Since a principal aim of public health is to achieve the greatest health benefits for the greatest number of people, it draws from the traditions of consequentialism, which judges the rightness of an action by the consequences, effects, or outcomes that it produces. Utilitarianism, one of the most influential forms of consequentialist ethical theory, holds that actions are justified insofar as they promote the greatest happiness of the greatest number of people. (Lawrence O. Gostin, ed., Public Health Law and Ethics: A Reader 14 (Revised and updated Second Edition 2010).)
The Administration’s utilitarian calculus in the mandate is straightforward: the interests in public health and gender equity are compelling and outweigh less weighty interests such as the religious liberty, moral objections, and economic freedom of individuals, institutions, and organizations coerced by the mandate. In its view, the benefits clearly outweigh the costs.
The Administration lauded the benefits of readily-accessible preventive services, including a healthier population, disease prevention, earlier treatment, and reduced health care costs. Drawing on the IOM Committee’s report, it claimed an array of benefits: meeting the basic health care needs of women; preventing unintended pregnancies (whether unwanted or mistimed); promoting healthy birth spacing; avoiding contraindicated pregnancies; saving employers pregnancy-related costs and costs related to absences and reduced productivity; removing the out-of-pocket-expense barrier to effective contraception; helping women achieve equal standing in the workforce; and improving the socio-economic status of women. The Administration retained a narrow religious-employer exemption because a broader exemption would lead to more employees paying out of pocket for contraceptive services, thus making it less likely that employees would use contraceptives. (In her well-research article “No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom” published in the Villanova Law Review, Professor Helen M. Alvaré challenged the empirical grounds cited by the IOM Committee, showing that the mandate is less about science and more about ideology.)
The Administration deemed the costs to be minor. It asserted that the mandate does not undermine religious and conscience exemptions in federal law and that its rules are consistent with the First Amendment and the Religious Freedom Restoration Act (RFRA). In conclusory fashion, the Administration’s utility balancers asserted that its “approach complies with [RFRA], which generally requires a federal law to not substantially burden religious exercise, or, if it does substantially burden religious exercise, to be the least restrictive means to further a compelling government interest.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725 (Feb. 15, 2012). Thus, even RFRA’s strict scrutiny standard, the highest standard courts apply when reviewing government laws, posed no problem for the mandate because the Administration viewed its interests as compelling. In the end, forcing individuals and organizations to violate religious belief or conscience did not have much weight.
On its face, the utilitarian balancing appears objective and even capable of leading to undeniable conclusions. But, in reality, such moral reasoning leads to preordained conclusions that conform to the values of decision makers. In other words, utilitarian balancing affords policy makers an opportunity to put their own thumbs on the scale as they import their own subjective values and assign more weight to their own values and less weight to opposing values. It appears that that is precisely what happened with the making of the mandate.
Furthermore, this mode of moral decision making emphasizes immediate, concrete, and convenient interests, while deemphasizing or ignoring more remote, more abstract, or less convenient interests. In the case of the mandate, the Administration’s analysis gave no weight to the status of the unborn, even though several FDA-approved contraception methods prevent fertilized eggs from implanting in the uterus. Thus, these new humans, who are in their earliest and most vulnerable stages, received no consideration, and the moral objections of millions of citizens who understand these methods to constitute abortion, and not contraception, were given little weight.
Thus, the mandate legislates morality. The mandate reflects a moral vision of the good and the just society. The mandate advances the Administration’s vision of women’s freedom and gender equity by providing unfettered access to the full range of family planning services as a means of fulfilling its vision of the good. The Administration also understands such access to be a necessary component of its effort to reorder society according to its conception of the just society. Additionally, the mandate is premised upon the moral values of the policy makers regarding the family, human sexuality, and the status of the unborn. The mandate also expresses the Administration’s moral judgment that its vision of public health and gender equity should be advanced even at the expense of unborn babies, religious freedom, matters of conscience, and the economic freedom of individuals and organizations.
In adopting the mandate, the Administration bypassed standard regulatory procedures. It did so to ensure that its moral vision, values, and judgments would prevail. Public health policy experts have warned that the legitimacy of public health initiatives may be undercut when initiatives are premised more on ideology than science, when government is not transparent in approving initiatives, and when the process for adopting initiatives is unfair. It may be that the Administration’s contraceptive coverage mandate will become a textbook example of a public health initiative delegitimized by the actions of its proponents.