Mapping Current Events Series
Learn our legal structure in the context of current events.
Legislative - Executive - Judicial
Topic: The Contraception Mandate
The Affordable Care Act requires employer-sponsored healthcare plans to include contraception. The “Contraception Mandate” is controversial because some religious groups find contraception, particularly certain types of contraception, morally unsound. Religious employers got the Supreme Court to give them an exemption. The Trump administration is considering removing contraception coverage from the rules all together.
This reports shows you the legal landscape of the contraception discussion.
Read with purpose.
This report will help you answer...
If you think the Contraception Mandate is a violation of an employer’s rights, what law should you reference to make your point?
If the Trump administration wants to exclude contraception from the list of women’s preventive services, how can they do that?
Burwell v. Hobby Lobby allows religious employers an exemption from the Contraception Mandate. How does the exemption work? More specifically, who now pays for their employees to get contraception?
If the new administration does exclude contraception from the list of women’s preventive services and you think that exclusion violates your rights, what is the best way to argue that?
The bonus answer is not directly in this report. At least two Constitutional rights are potential grounds for a case.
Congress’s power to make laws:
Article I of the Constitution lists the powers of Congress. Congress, the law-maker for the federal government, can make laws on topics of federal concern. Section 8 lists those topics. They are called the “Enumerated Powers.”
The list of federal topics includes the power to regulate “interstate” commerce, or commerce between the states (“Commerce Clause”). You can see the whole list of Congress’s enumerated powers here, along with explanations.
The Constitution itself is not specific enough to tell us everything. So we rely on the courts to tell us exactly what Congress’s powers include.
The commerce power justifies the Employer Mandate (including the the Contraception Mandate) in the Affordable Care Act.
See Liberty University v. Lew in the Judicial column (a Court of Appeals case that ruled that Congress had the power to require employers to cover a certain standard of healthcare in the plans they offer their employees).
Limits to Congressional Power:
Congress cannot violate the First Amendment.
Other parts of the Constitution, like the Bill of Rights (the first ten amendments), limit the powers of Congress. The First Amendment is one of those limitations. The First Amendment includes the right for individuals to exercise their religion freely (“Free Exercise” clause).
The First Amendment’s Free Exercise clause does not ban Congress from establishing the Contraception Mandate.
The Free Exercise clause does not keep the government from burdening the exercise of religion, as long as the government is not directly aiming to harm religious exercise. The government can make laws that have indirect effects on religion. The Supreme Court has ruled on this. See Emp't Div., Dep't of Human Res. v. Smith in the Judicial column.
In response to this Supreme Court decision, Congress enacted a law protecting religious exercise from burdensome laws. See Religious Freedom Restoration Act in the Legislative section. Congress basically did what the Constitution might have done if the Supreme Court had decided the Smith case the other way. The difference is that a law can be overturned by a regular act of Congress (the Constitution cannot). Religious organizations/companies have used this Act to challenge the Contraception Mandate. And they have been successful. See Burwell v. Hobby Lobby in the Judicial Column.
The Affordable Care Act (ACA) requires employers’ insurance plans to cover a minimum standard of care (the “Employer Mandate”). Employers must cover certain “women’s health preventive services,” and the plan must include those services without cost-sharing (co-pay, deductibles, or co-insurance). The ACA’s preventive services requirement does not specifically list contraceptives. The Act gave the federal agency Department of Health and Human Services (HHS) the responsibility to define exactly what preventative care services must be covered. See the Executive column for the Contraception Mandate.
The Religious Freedom Restoration Act of 1993 limits the potential for the government to make laws that “burden” religious exercise. It says that, even if the government is making a neutral law (it does not pick on a particular religious group), if that law “significantly burdens” religious exercise, then the government must work toward its goal (the “compelling interest” the government is trying to achieve) so that it imposes the least burden possible on religious exercise.
president and Executive agencies
Federal agencies issue rules (“regulations”) that help federal legislation get implemented. Federal agencies can only do what legislation empowers them to do.
The Department of Health and Human Services (HHS) is the main federal agency responsible for health policy. The laws relating to healthcare empower HHS along with other agencies to help enforce them. The Affordable Care Act gives HHS authority to decide what kind of preventive women’s health services must be included in employers’ health insurance plans.
Contraception Mandate, First Version
HHS originally issued rules that qualify 20 types of contraceptives as “preventive women’s health services.” Employers had to include those 20 in the health plans they offered to employees without requiring any co-payment or cost sharing. Only religious organizations and nonprofits were able to get an exemption from that requirement, if they objected on religious grounds.
However, Hobby Lobby and another for-profit company sued because they could not get the exemption. The Supreme Court ruled that HHS would have to change its rules. See Burwell v. Hobby Lobby in the Judicial column.
Contraception Mandate, Second Version
As a result of that decision, HHS modified its rules. The new version allows for-profit companies (closely held corporations, not publicly traded) an exemption from the Contraception Mandate. Those companies now can object to the Contraception Mandate on religious grounds and request an exemption from providing contraception in the health plans they offer employees.
Power to Change Contraception Mandate Again
The current HHS, now run by a different administration (Trump), can change its own rules again. It can make new rules, either to change the contraception mandate or to remove the contraception mandate from its definition of “preventive women’s health services” all together.
President Trump Executive Order
President Trump issued an Executive Order on May 4, 2017 instructing HHS to consider amending the regulations that include the Contraception Mandate.
Courts are important because they interpret the laws. When it comes to a dispute over whether something is allowed, the courts will tell us. Here are some important decisions relating to the Contraception Mandate.
Congress had the right to pass the Employer Mandate and the Contraception Mandate.
In Liberty University v. Lew (4th Circuit Court of Appeals, 2013), the court ruled that Congress has the power to regulate healthcare policies of employers. It said this is an area of commerce that has a national impact. It is a federal issue, and Congress has the right to regulate it, just like Congress can require employers to meet minimum wage and labor standards requirements.
The Constitution’s First Amendment does not help employers get out of the contraception mandate.
In Emp't Div., Dep't of Human Res. v. Smith (1990), two members of the Native American Church were barred from getting unemployment because they were fired for using peyote at a religious ceremony. Oregon state law prohibited people fired for “work-related misconduct” from getting unemployment benefits, and the law made no exception for religious exercise. The two men sued, claiming the law violated his right to Free Exercise (First Amendment) of the Constitution. The Supreme Court disagreed. A law that regulates general conduct does not violate the Free Exercise clause just because it happens to burden religion.
To address the ruling, three years later, Congress passed a statute saying that any law placing a “substantial burden” on religious exercise would have to be well justified by the government. The law would have to meet the government’s goal with the least restrictions possible on religious exercise. See Religious Freedom Restoration Act of 1993 in the Legislative column.
The Religious Freedom Restoration Act requires the government to allow religious organizations (including many for-profit companies) an exemption to the contraception mandate.
In Burwell v. Hobby Lobby (2014), Hobby Lobby and another for-profit employer sued the government arguing that they should not have to pay for contraception in the employer health insurance plans they offer to employees. They argued that the types of contraception that are “abortifacient” (IUDs and “morning after” pills) are evil, and the Religious Freedom Restoration Act of 1993 entitles them to an exemption. The court agreed. The Court ruled the government must offer the for-profit employees an exemption similar to the one it gives to nonprofit and religious organizations.
States can choose to require contraception coverage in employer-sponsored health plans. The Hobby Lobby Supreme Court ruling required the federal government to give exemptions to the contraception mandate for religious groups or companies. The Religious Freedom Restoration Act only applies to the federal government.
According to the Guttmacher Institute, 28 states require that contraceptives are included in health insurance plans. The state laws bind the health insurers, not the employers. Of the 28 that require insurers to include contraception, only 3 prohibit cost-sharing by the individual (like the federal law).
In light of plans by the Trump administration to remove contraception coverage from the ACA requirements, some states are planning to adopt state laws to ensure those requirements are maintained.