With the exception of churches and houses of worship, the
Patient Protection and Affordable Care Act mandates female contraceptive coverage for all employers and educational institutions, even though the mandate itself is not included in the wording of the law(s) passed by Congress. The mandate applies to all new health insurance plans effective August 2012. It controversially includes Christian hospitals,
Christian charities,
Catholic universities, and other enterprises owned or controlled by religious organizations that oppose contraception on doctrinal grounds. On January 20, 2012,
U.S. Department of Health and Human Services Secretary Kathleen Sebelius announced a (then) final rule of an August 1, 2011 interim final rule on health insurance coverage with no cost sharing for
FDA-approved contraceptives and contraceptive services (including female sterilization) for women of reproductive age if prescribed by health care providers, as part of women's preventive health services guidelines adopted by the
Health Resources and Services Administration (HRSA) for the Affordable Care Act.
Male contraception is not eligible. Regulations made under the act rely on the recommendations of the independent
Institute of Medicine (IOM) in its July 19, 2011 report
Clinical Preventive Services for Women: Closing the Gaps, which concluded that birth control is medically necessary "to ensure women's health and well-being". The administration allowed a religious exemption. The exemption initially applied to church organizations themselves, but not to affiliated nonprofit corporations, like hospitals, that do not rely primarily on members of the faith as employees. An amendment, the Blunt Amendment, was proposed that "would have allowed employers to refuse to include contraception in health care coverage if it violated their religious or moral beliefs", but it was voted down 51–48 by the U.S. Senate on March 1, 2012. In May 2015 the Obama administration stated that under the ACA, at least one form of all 18 FDA-approved methods of birth control for women must be covered without cost-sharing. These 18 methods include: sterilization surgery, surgical sterilization implant, implantable rod, copper intrauterine device, IUDs with progestin (a hormone), shot/injection, oral contraceptives (the pill), with estrogen and progestin, oral contraceptives with progestin only, oral contraceptives, known as extended or continuous use that delay menstruation, the patch, vaginal contraceptive ring, diaphragm, sponge, cervical cap, female condom, spermicide, emergency contraception (Plan B/morning-after pill), and emergency contraception (a different pill called Ella). All forms of male birth control are exempt from mandatory coverage under the ACA and the "ObamaCare Facts" page explicitly states that "Plans aren't required to cover services related to a man's reproductive capacity, like vasectomies."
Opposition to contraceptive mandate In February 2012, a major political controversy erupted with
candidates for the Republican nomination for President viewing the regulations as a "direct attack on religious liberty". The
United States Conference of Catholic Bishops has since taken the lead in opposition to the regulations. Cardinal
Timothy M. Dolan, the
archbishop of New York and president of the
United States Conference of Catholic Bishops, stated that the provision "represents a challenge and a compromise of our religious liberty". The regulations issued under the act are also opposed by active Christian
Evangelicals. Other organizations, such as
Planned Parenthood, supported the provision.
Response to opt-out regulations The
Catholic Health Association (CHA) accepted this compromise. Although initially more supportive, Sister
Carol Keehan, CEO of the CHA, registered opposition in a five-page letter to the U.S. Department of Health and Human Services. The vice president of Catholic identity and mission at
Mount St. Mary's University, Stuart Swetland, said, "It shows [Obama] and the administration are listening to our concerns", but reserved the right to "examine the details". However, the United States Conference of Catholic Bishops continued to oppose the regulation, saying that the regulation still requires Catholics in the insurance industry to violate their consciences. Catholic opinion is split with a
New York Times/CBS News poll showing 57% support of the regulations among Catholic voters and about the same by non-Catholics. In June 2013, the
Tenth Circuit Court of Appeals allowed a lawsuit against the mandate by arts and crafts retailer
Hobby Lobby to proceed. The
Green family objected to contraceptives which they believe may prevent implantation of a fertilized egg, which, according to
pro-life advocacy organizations, include the
emergency contraceptives
Plan B (
levonorgestrel),
ella (
ulipristal acetate), and
copper IUDs. In July 2013, the
Third Circuit denied a preliminary injunction requested by Conestoga Wood Specialties Corporation, a cabinet manufacturing company owned by a
Mennonite family, requesting an exemption from the mandate on religious grounds. Both of these rulings were appealed to the
Supreme Court, which granted
certiorari on the consolidated cases to resolve the split. Another decision by the
Sixth Circuit in a similar case had been appealed to the Supreme Court, and was being held pending the court's decision in the other two cases. As of January 2014, at least 28 states in the US have contraceptive mandates; however, 20 of them allow some exceptions; four of those attempt to bridge the gap by letting employees buy coverage at the group rate.
Supreme Court review A number of challenges to the contraceptive mandate have been brought to the Supreme Court by different types of organizations.
Closely held for-profit corporations On June 30, 2014, the Supreme Court ruled 5 to 4 in
Burwell v. Hobby Lobby that under the
Religious Freedom Restoration Act (RFRA), closely held for-profit corporations are exempt from the contraceptive mandate, if they object on religious grounds, because the accommodation offered to objecting non-profits would be a less restrictive way to achieve the ACA's interest. Justice Anthony Kennedy, one of the majority justices, wrote in a concurring opinion that the government "makes the case that the mandate serves the Government's compelling interest in providing insurance coverage that is necessary to protect the health of female employees", but that the RFRA's least-restrictive way requirement was not met because "there is an existing, recognized, workable, and already-implemented framework to provide coverage", the non-profit accommodation.
Religious institutions On February 15, 2012,
Priests for Life v. HHS was filed in the
U.S. District Court for the Eastern District of New York challenging the constitutionality of the contraceptive mandate on behalf of
Priests for Life, a national Catholic
pro-life organization that was based in New York City, but is now headquartered in
Titusville, Florida. The case was dismissed by U.S. District Court Judge
Frederic Block for lack of ripeness because the new compromise regulations were not yet finalized. On November 6, 2015, the
Supreme Court of the United States decided to review the case combined with 6 other similar challenges to the contraceptive mandate. The case is titled
Zubik v. Burwell and the six other challenges include
Priests for Life v. Burwell,
Southern Nazarene University v. Burwell,
Geneva College v. Burwell,
Roman Catholic Archbishop of Washington v. Burwell,
East Texas Baptist University v. Burwell and
Little Sisters of the Poor Home for the Aged v. Burwell. Due to the death of Justice
Antonin Scalia before the case was decided, the Supreme Court was deadlocked on
Zubik. Instead of issuing a decision, it ordered the cases back to lower courts and ordered the HHS and other responsible departments to work with the parties to come up with new rules for exemptions for the mandate that took into account the parties' concerns. As part of this, by the end of 2016, an initial period of requests for input has been opened as part of the new rule-making procedure.
Trump administration change Shortly after taking office, President
Donald Trump issued
Executive Order 13798, "Promoting Free Speech and Religious Liberty" in May 2017 to urge the departments responsible for the ACA to issue a conscience-based exemption for the contraceptive mandate as soon as possible. By October 2017, the HHS and other agencies issued a ruling letting insurers and employers refuse to provide birth control if doing so violates their religious beliefs or moral convictions. The injunction was challenged at the Supreme Court by the government in
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. There, in July 2020, the Court ruled in a 7–2 that the new rules were valid and put into place properly, lifting the injunction.
Reactions More Democratic politicians favor these mandates than Republican politicians.
Barbara Boxer, Democratic Party Senator for California, and
House Minority Leader Nancy Pelosi favor the Obama policy.
Darrell Issa, a Republican congressman from California, said that Americans are divided on this issue: "While some Americans may not feel that forcing them to pay for contraception are an infringement on their religious beliefs, others consider it to be an assault against their
freedom of conscience." Issa's
February 2012 hearing on the matter was criticized by Democratic representatives for including only men from conservative religious institutions, and no women, leading to a walkout of three committee members.
Framing the issue Some people see the matter as primarily one of
women's health, such as the
National Women's Law Center. Others see it as a matter of
religious freedom. Certain consumers of mandatory health insurance, such as students matriculated at colleges of further education, have criticized what they perceive to be discrimination in provision or in practice: employer-provided plans that cover University faculty and staff may be subject to legal mandates whereas plans that cover the student body may not.
Sandra Fluke was invited to present oral arguments on behalf of certain female student consumers dissatisfied with restrictions attached to registration for undergraduate and graduate attendance at Georgetown University School of Law. ==See also==