By / Apr 11

On Feb. 2, 2023, the Departments of Health and Human Services, Labor, and Treasury released a proposed rule modifying “regulations regarding coverage of certain preventive services” under the Affordable Care Act. This is the 19th recorded change to the so-called “contraceptive mandate” since it was created under the Affordable Care Act. 

On Monday, the ERLC filed public comments in opposition to the change.

What does this rule do?

The Affordable Care Act allows the departments to create both a religious and moral exemption to the contraceptive mandate in order to rightly protect the consciences of Americans, whether they are informed by deeply held religious beliefs or moral convictions regarding taking a life. 

Though the proposed rule maintains the existing protections for religious entities and employers, it rescinds the “moral exemption,” created in a 2018 Trump-era rule, that has protected employers who object to providing abortifacient contraceptives for non-religious reasons.

The departments state that they seek, through this rule, to bolster access to birth control at no cost, because the “U.S. Supreme Court’s decision in Dobbs has placed a heightened importance on access to contraceptive services nationwide.” In citing the Dobbs decision as the primary reason for this action, the departments implicitly acknowledge that the provision of certain contraceptives is inextricably tied to the issue of abortion and the act of taking a life.

Why is this problematic?

In support of the proposal, the departments argue that: 

  • (a) a non-religious moral exemption is “not legally required,” 
  • (b) few entities make use of the moral exemption, and 
  • (c) non-religious objections “are outweighed by the strong public interest in making contraceptive coverage as accessible to women as possible.” 

As we argued in our comments, “No significant developments have occurred in the interim that suggest a change is warranted, especially when the stakes — the trampling of citizens’ consciences — are so high.” And the United States has a long history of non-religious Americans with moral objections to taking a life. Our comments go on to state,

As Southern Baptists, we acknowledge that conscience protections are essential to our ability to live out our most deeply held beliefs. For conscience protections to be meaningful, they must not only protect the freedom to believe but also the freedom to live in response to those beliefs. 

Further, these protections are not just for religious people but must be extended to all people, regardless of their faith identification. As our comments affirm, “At the founding of our country, James Madison wrote, ‘Conscience is the most sacred of all property.’ Regardless of the source of the conviction, whether religious or moral, the Constitution guarantees the protection of the conscience.”

How has the ERLC responded?

The ERLC has submitted public comments laying out these concerns with the proposed rule and urging these agencies to reconsider making these changes. While we celebrate the preservation of the religious exemption, this proposed rule protects the consciences of fewer individuals, funnels more money to Planned Parenthood, and seeks to frame objections to contraception and abortion as a fringe religious concern. 

Whether the root of one’s conviction against taking a life is rooted in faith or something else, that person’s conscience should be protected. The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the protection of life and conscience rights.

By / Jul 10

In this episode, Josh, Lindsay, and Brent discuss this week’s Supreme Court rulings, foreign students being forced to leave the U.S., Kanye West, plans for New York City schools, Charlie Daniels and Ivy League canceling fall sports. Lindsay also gives a rundown of this week’s ERLC content including pieces by RaShan Frost, Heather Rice-Minus, and Josh Wester. Also in this episode, the hosts are joined by Travis Wussow for a conversation about life and ministry.

About Travis

Travis Wussow serves as the vice president for Public Policy and General Counsel. Travis led the ERLC’s first international office located in the Middle East prior to joining the Washington, D.C. office. He received a B.B.A. in Finance from The University of Texas at Austin and a J.D. from The University of Texas School of Law. He and his wife, Katie, have two daughters. You can connect with her on  Twitter: @traviswussow.  

ERLC Content

Culture

  1. Supreme Court ministerial exception affirmed
  2. Supreme Court rules employers with religious objections can be exempt from ACA’s birth control mandate
  3. SCOTUS: Congress can’t get Trump tax records, but grand jury subpoena may
  4. Foreign students could be forced to leave U.S. if colleges move online
  5. Harvard and MIT sue Trump administration over rule barring foreign students from online classes
  6. Kanye West announces he is running for president in the 2020 US election
  7. BBC More than three million people in the US have now tested positive for Covid-19, according to Johns Hopkins University.
  8. CNN: Tom Hanks: Wear a mask
  9. Atlanta Mayor Keisha Lance Bottoms tests positive for coronavirus
  10. New York City schools will not fully reopen in fall 
  11. RIP Charlie Daniels.
  12. The Ivy League becomes the first Division I conference to cancel all fall sports

 Lunchroom

 Connect with us on Twitter

Sponsors

  • ERLC Highlights – subscribe for curated content from the ERLC’s editors delivered straight to your inbox
By / Jul 9

Today, the Supreme Court issued a 7-2 decision in Little Sisters of the Poor v. Pennsylvania.  In this case the Justices held that religious organizations could be exempt from a government mandate that they provide contraception coverage for their employees.

In 2010, Congress passed the Affordable Care Act which included a mandate for employers to provide contraception for their employees. Although churches were exempt from the mandate, religious employers and nonprofits were not. The Trump administration issued an exemption to this mandate for religious employers.  Pennsylvania and New Jersey sued, arguing that these rules should be struck down because they interfere with the government’s interest in providing access to contraception and alleging that the government violated the ACA and the Administrative Procedure Act when issuing the rules. The Little Sisters of the Poor asked the Court to uphold the exemption for religious organizations. 

The ERLC filed an amicus brief (a friend-of-the-court brief) with other religious organizations arguing that the contraceptive mandate does impose a substantial burden on religious organizations. Specifically, we argued that forcing Little Sisters to provide contraception would violate their sincerely held religious beliefs.  We also pointed out that if the exemption was not granted, the Little Sisters would be subject to over 2 million dollars in files for noncompliance. Both of these reasons prove the mandate imposed a substantial burden.

Justice Thomas wrote the majority opinion and was joined by Chief Justice Roberts, Justices Alito, Gorsuch, and Kavanaugh. Justice Alito wrote a conuccence joined by Justice Thomas. Justice Kagan wrote a concurrence and was joined by Justice Breyer, while Justice Ginsberg and Sotomayor dissented. 

Below are key quotes from both the majority opinion and the dissents highlighting how the court reached their decision. The quotes are organized by topics the justices covered in their writings. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more information on this case and how it will further impact religious organizations, check out our explainer.

Majority Opinion: Justice Thomas joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh

The Trump Administration can provide an exception to the mandate:

“We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.” (2)

“By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA. Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.” (16)

“The dissent resists this conclusion, asserting that the Departments’ interpretation thwarts Congress’ intent to provide contraceptive coverage to the women who are inter- ested in receiving such coverage.” (17)

“Contrary to the dissent’s protestations, it was Congress, not the Departments, that declined to expressly require contraceptive coverage in the ACA itself.” (18)

“The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.” (18)

“We focus our inquiry on whether the Departments satisfied the APA’s objective criteria, just as we have in previous cases. We conclude that they did.” (25)

The Religious Freedom and Restoration Act was the appropriate basis for the HRSA exception:

“It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA.” (20)

“If the Departments did not look to RFRA’s requirements or discuss RFRA at all when formulating their solution, they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.” (22)

Let the Little Sisters serve:

“For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother…But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.” (26)

“After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.” (26)

Concurring Opinion: Justice Alito joined by Justice Gorsuch 

HRSA was right to provide a mandate on the basis of RFRA:

“Under our decision in Hobby Lobby, requiring the Little Sisters or any other employer with a similar religious objection to comply with the mandate would impose a substantial burden.” (6)

“The contraceptive mandate imposes a substantial burden on any employer who, like the Little Sisters, has a sincere religious objection to the use of a listed contraceptive and a sincere religious belief that compliance with the mandate…makes it complicit in the provision to the employer’s workers of a contraceptive to which the employer has a religious objection.” (10)

“I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption. . . . I would bring the Little Sisters’ legal odyssey to an end.” (19)

There is no compelling government interest to force nuns to provide contraception:

“In Hobby Lobby, the Government asserted…that [it] had a compelling interest in “ensuring that all women have access to all FDA-approved contraceptives without cost sharing.” Now, the Government concedes that it lacks a compelling interest in providing such access, and this time, the Government is correct.” (10)

“Thus, in order to establish that it has a ‘compelling interest’ in providing free contraceptives to all women, the Government would have to show that it would commit one of ‘the gravest abuses’ of its responsibilities if it did not furnish free contraceptives to all women. (10-11)

“The ACA—which fails to ensure that millions of women have access to free contraceptives—unmistakably shows that Congress, at least to date, has not regarded this interest as compelling.” (11)

“First, the ACA does not provide contraceptive coverage for women who do not work outside the home. If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck?” (11)

“Second, if Congress thought that there was a compelling need to provide cost-free contraceptives for all working women, why didn’t Congress mandate that coverage in the ACA itself? Why did it leave it to HRSA to decide whether to require such coverage at all?” (11-12)

“Third, the ACA’s very incomplete coverage speaks volumes. The ACA “exempts a great many employers from most of its coverage requirements.” (12)

Warning for the future:

“We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the [Administrative Procedure Act].” (2)

Concurring Opinion: Justice Kagan, joined by Justice Breyer

Justices Kagan and Breyer agreed only with the judgment of the Court and not with the majority’s reasoning. They filed a separate opinion to articulate their reasoning for agreeing with the final outcome of upholding HHS’s rules.

HRSA has authority is issue exceptions:

“I would uphold HRSA’s statutory authority to exempt certain employers from the contraceptive-coverage mandate, but for different reasons than the Court gives.” (1)

“Over the course of two administrations, the Departments have shifted positions on many questions involving the Women’s Health Amendment and the ACA more broadly. But not on whether the Amendment gives HRSA the ability to create exemptions to the contraceptive-coverage mandate. . . While the exemption itself has expanded, the Departments’ reading of the statutory delegation—that the law gives HRSA discretion over the “who” question—has remained the same. I would defer to that longstanding and reasonable interpretation.” (3)

The lower courts should examine that process used in issuing the exemption:

“[T]hat does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside HRSA’s statutory authority, but also as ‘arbitrary [and] capricious.’”(3)

“An agency acting within its sphere of delegated authority can of course flunk the test of ‘reasoned decisionmaking.’  The agency does so when it has not given ‘a satisfactory explanation for its action’—when it has failed to draw a ‘rational connection’ between the problem it has identified and the solution it has chosen, or when its thought process reveals ‘a clear error of judgment.’” (4)

“As noted earlier, I would defer to the Departments’ view of the scope of Congress’s delegation. That means the Departments (assuming they act hand-in-hand with HRSA) have wide latitude over exemptions, so long as they satisfy the requirements of reasoned decisionmaking. But that ‘so long as’ is hardly nothing. Even in an area of broad statutory authority—maybe especially there—agencies must rationally account for their judgments.” (7)

Dissenting Opinion: Justice Ginsburg joined by Justice Sotomayor

Depriving women of contraception coverage:

“Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.” (2)

“Effective contraception, it bears particular emphasis, ‘improves health outcomes for women and [their] children,’ as ‘women with unintended pregnancies are more likely to receive delayed or no prenatal care’ than women with planned pregnancies.” (5)

“Despite Congress’ endeavor, in the Women’s Health Amendment to the ACA, to redress discrimination against women in the provision of healthcare, the exemption the Court today approves would leave many employed women just where they were before insurance issuers were obliged to cover preventive services for them, cost free.” (8)

“In this light, the Court has repeatedly assumed that any religious accommodation to the contraceptive-coverage requirement would preserve women’s continued access to seamless, no-cost contraceptive coverage.” (14)

“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” (1)

Religious exemptions have been wrongfully extended to for-profit companies:

“For years, religious organizations have challenged the self-certification accommodation as insufficiently protective of their religious rights. While I do not doubt the sincerity of these organizations’ opposition to that accommodation, I agree with Pennsylvania and New Jersey that the accommodation does not substantially burden objectors’ religious exercise.” (18)

“Under new rules drafted not by HRSA, but by the IRS, EBSA, and CMS, any ‘non-governmental employer’—even a publicly traded for-profit company—can avail itself of the religious exemption previously reserved for houses of worship.” (7)

“The blanket exemption for religious and moral objectors to contraception formulated by the IRS, EBSA, and CMS is inconsistent with the text of, and Congress’ intent for, both the ACA and RFRA. Neither law authorizes it.” (21)

ERLC interns Julia Stamper, Sloan Collier, Seth Billingsley, and Mary Beth Teague contributed to this article.

By / Jul 9

In a victory for all Americans and people of faith, the Supreme Court ruled 7-2 that the Little Sisters of the Poor do not have to violate their consciences, upholding two rules issued by the U.S. Department of Health and Human Services that provide an exemption from the Affordable Care Act’s contraceptive mandate on religious and moral grounds.

Justice Thomas wrote the majority opinion and was joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh. Justice Alito wrote a concurring opinion and was joined by Justice Gorsuch.  Justice Kagan wrote an opinion where she concurred in judgment, but not reasoning, and was joined by Justice Breyer.  Justice Ginsberg wrote a dissenting opinion and was joined by Justice Sotomayor. 

What is this case about?

In 2010, Congress passed the Affordable Care Act (ACA), which contained a provision known as the contraceptive mandate that compels employers to include contraceptives in their health care plans. Importantly, this meant that employers were required to provide coverage for all FDA-approved contraceptives, which includes a number of abortifacient drugs. While houses of worship were exempt from this mandate, faith-based organizations were not granted an exemption from the contraceptive mandate.

The contraceptive mandate was the subject of many years of litigation. A coalition of religious organizations, including the ERLC, challenged the contraceptive mandate, arguing that the mandate violated the Religious Freedom Restoration Act. These arguments were ultimately successful, and in 2016 the Supreme Court, in a case called Zubik v. Burwell, ordered the Department of Health and Human Services (HHS) to provide an accommodation from the contraceptive mandate for religious organizations.

In 2018, HHS, responding to Zubik v. Burwell, adopted new regulations that provided protections for religious objectors to the contraceptive mandate. The Trump Administration cited the Religious Freedom Restoration Act (RFRA), which requires the government to pursue its policy goals in the manner that is least restrictive of religious liberty.

Nevertheless, Pennsylvania and New Jersey sued HHS, arguing that these rules should be struck down because they interfere with the government’s interest in providing access to contraception and alleging that the rules violated the ACA and the Administrative Procedure Act (APA). The Little Sisters were back at the Court, asking the Court to uphold the Trump administration’s exemption for religious employers. Without this exemption, the contraception mandate would coerce the Little Sisters of the Poor, along with other religious organizations, to provide contraceptive coverage despite their sincerely held religious objections. 

How did the court reach this decision? 

In his majority opinion, Justice Thomas argued that HHS has the authority to issue exemptions to religious organizations under the ACA and the APA and also that their decision rightfully considered the limitations the Religious Freedom Restoration Act (RFRA) places on the federal government. When issuing these rules, HHS conducted an analysis of its own rules under RFRA and determined that RFRA required HHS to create these exemptions on religious and moral grounds. This is significant because it is an example of the government applying RFRA proactively rather than taking action and waiting for a plaintiff to sue, claiming RFRA protections. Although the Court did not decide the case on RFRA grounds, the majority opinion affirmed this approach to rulemaking by HHS.

Though Justices Kagan and Breyer agreed that religious organizations are entitled to an exemption to the contraceptive mandate of the ACA, they disagreed with the majority’s reasoning. They instead argued that presidential administrations have broad power to issue exemptions, and therefore, the religious organizations should be exempt from the mandate only because the administration allows them to be exempt. They disagreed with the majority’s assertion that HRSA had the statutory authority to issue an exemption on the basis of RFRA.

What is the significance of this case?

This case reaffirms that the government cannot pave over the consciences of religious organizations in pursuit of a policy goal when the government has other options for achieving that goal that do not infringe religious liberty. The right of religious organizations to operate in a manner consistent with their religious beliefs is a fundamental right protected by the Constitution.

Today’s ruling also charts a path forward for public policy debates where Americans disagree about fundamental truths. As Russell Moore said of today’s ruling, “My hope is that now we can move on toward an American public square in which we can have moral and doctrinal debates without seeking to force people into choosing between their deepest held convictions and the callings of service to which those convictions lead. These joyful nuns can now serve the poor without fear that Uncle Sam will try to be their Pope. For all Americans, whatever our views, this is good news.”

How did the ERLC engage in this case?

The ERLC filed an amicus brief (a friend-of-the-court brief) with other religious organizations arguing that the contraceptive mandate does impose a substantial burden on religious organizations.  

Specifically, we argued that forcing Little Sisters to provide contraception coverage as a part of their heath care plans would violate their sincerely held religious beliefs.  We also pointed out that if the exemption was not granted, the Little Sisters would be subject to over 2 million dollars in fines for noncompliance. Both of these reasons prove the mandate imposed a substantial burden.

Further, we argued that the government has other options for providing contraception to Americans that does not require the infringement of religious liberty. As Dr. Moore argued in 2017, “the government can ensure access to contraceptives just fine without forcing nuns to deliver them.”

What does today’s ruling mean moving forward?

Today’s ruling means that HHS’s religious and moral exemptions to the contraceptive mandate were properly issued and finalized under the terms of the ACA and the APA.

Hopefully, today’s ruling is the end of this long saga. However in a separate opinion, Justice Alito expressed that future litigation on these issues is a possibility. The case is now headed back to the circuit courts for further consideration in light of the opinion issued by the Court today. The lower courts will now decide whether HHS issued these rules under other provisions of the APA that were not before the Court in this case.

We hope the lower courts will affirm HHS’s new rules and bring a final end to the litigation over the contraceptive mandate. Russell Moore commented today, “The Little Sisters never wanted to be in court, and are not in any way political activists. All they want is to carry out their mission of serving the poorest and most vulnerable among us. One need not agree with the Sisters on their theological or moral beliefs to recognize that a free country should allow them to serve without state harassment.”

ERLC interns Julia Stamper, Sloan Collier, and Mary Beth Teague contributed to this article.

By / Nov 9

When the Affordable Care Act (ACA) was enacted in 2010, there was much discussion about what this new law would mean in regards to the health care coverage requirements. Beginning in 2011, the Departments of Health and Human Services (HHS), Treasury, and Labor established mandated coverage of contraceptives, including those with abortifacient properties, in health care plans. The Obama Administration offered a narrow exemption for churches, religious orders, and integrated auxiliaries (organizations with financial support primarily from churches).

This new contraceptive mandate prompted numerous legal challenges from religious organizations and small businesses nationwide. The historic Burwell v. Hobby Lobby Stores, Inc. decision was made in 2014, in which the Supreme Court ruled that closely held for-profit organizations can constitutionally object and be exempted from the mandate on the basis of sincerely held religious beliefs. In the majority opinion, Justice Alito argued: “HHS’s contraceptive mandate substantially burdens the exercise of religion.” Though religious freedom advocates welcomed the success, dozens of other organizations continued the fight by filing lawsuits against the HHS on the basis of moral conviction.

In follow up to both the Supreme Court’s opinion and the moral concerns raised thereafter, the Trump Administration proposed two interim rules in October 2017. On Wednesday of this week, HHS, Treasury, and Labor issued both rules as final.

The first would provide an exemption on the basis of sincerely held religious beliefs, and the second on the basis of nonreligious moral convictions. Nonprofit organizations, closely held for-profit entities, education institutions, insurance providers, and individuals are eligible for exemption under both rules. Protections only extend to publicly-traded businesses if their opposition to the mandate is because of their sincerely held religious beliefs, but not if the opposition is because of their nonreligious moral convictions. Government entities do not qualify for either exemption. The exemptions specifically extend to certain contraceptives many view as abortifacients, and/or sterilization procedures.

In support of the interim rules, ERLC President Russell Moore commented,

The government has no business whatsoever forcing citizens to subsidize the destruction of human life and the exploitation of families and communities. More still, the contraceptive mandate revealed the audacity of a state that believed it could annex the human conscience, which is why I have long opposed it as an unlawful overreach asking citizens to choose between obedience to God and compliance with the regulatory state. A government that can pave over the consciences of some can steamroll over dissent everywhere.

After the announcement of the final rules this week, Moore added, “These exemptions are the long awaited conclusion to the crucial achievement of preserving religious liberty from an unlawful government overreach. I am thankful that this effort finally ends with religious and moral exemptions issued by the Administration.”

Between the interim rule release in October 2017 and the final rules issued in November 2018, the Administration accepted over 100,000 comments from the public, including comments drafted by the ERLC policy team affirming the proposed rules. The three federal departments considered these comments before institutionalizing the rules.

The new final rules will go into effect 60 days after their publication in the Federal Register.

By / Jun 25

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.

Conclusion

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.