As Republicans deal with the difficulties of rolling back the Affordable Care Act, one unpopular part of Obamacare that could be killed before the rest of the law is repealed is the contraceptive mandate. The mandate required health insurance plans to cover contraceptive and abortion-inducing drugs at no out-of-pocket cost.
Unlike many aspects of Obamacare, the contraceptive mandate is not written into the text of the Affordable Care Act. The contraceptive mandate was created by Secretary of Health and Human Services Kathleen Sebelius in 2011 as part of administrative rulemaking associated with the ACA. Many religious organizations were not exempted from the mandate even though they had ethical objections to providing contraceptives and abortifacients.
Ultimately, challenges to the mandate went all the way to the Supreme Court. In the Hobby Lobby decision, the Court ruled that the HHS mandate violated the Religious Freedom Restoration Act and required an accommodation for the groups and companies who found the mandate immoral. In a compromise, the final HHS rule allowed companies to opt out of providing contraceptives and abortifacients in their insurance plans, but still required insurance companies to cover the drugs without a copay for employees.
Now, under the Trump Administration, there are signs that the current HHS policy may be about to change. The new secretary of the Department of Health and Human Services is Tom Price, a former congressman who opposed the mandate as a legislator. In a 2012 interview with Think Progress, Price said, “The fact of the matter is that this is a trampling on religious freedom and religious liberty in this country. The president does not have the power to say that your First Amendment rights go away.”
During his confirmation hearings, Price indicated that he is not opposed to contraception in general, even if he opposes the mandate. Price said, “I think contraception is absolutely imperative for many, many women and the system that we ought to have in place is one that allows women to be able to purchase the kind of contraception they desire.”
Because the contraceptive mandate was never enacted by Congress, it could be reversed by issuing a new HHS rule or an Executive Order. Administrative rules issued by agencies like HHS have the force of law, but are not subject to congressional votes.
“They could issue new guidance that says plans have more leeway to cover what they need to cover,” Laurie Sobel, associate director for women’s health policy at the Kaiser Family Foundation, told The Hill.
Alternatively, Republicans could include the mandate in a repeal of the Affordable Care Act to be voted on by Congress. Republicans reportedly plan to repeal the Affordable Care Act with a budget reconciliation that requires a simple majority vote. Elements of the repeal that are not included in the budget reconciliation would be subject to Democrat filibusters.
The Hill also noted that Republicans are considering making access to contraceptives easier by allowing them to be sold without a prescription. “We probably wouldn’t require that [mandate], but in doing that, we need to make them behind or across the counter,” said Rep. Phil Roe (R-Tenn.), a former OB/GYN. “In other words, you come in [to a pharmacy], you want birth control, you get it, you go.”
It is important to note that, Obamacare does not provide for free contraception. There is no copayment or out-of-pocket cost, but there is still a price to be paid. The cost of the drugs is included in the premium for the health insurance which must still be paid by the employee or the business. In the case of religious companies that opt out, the cost must be borne either by the insurance company or spread among the other policy holders.
A solution to the problem of paying for contraception has been introduced by Rep. Dave Brat (R-Va.) in the form of a bill that would give consumers more control over medical spending through health savings accounts (HSAs). “Instead of having to get coverage approved from the government, an employer, or an insurance company, people will be able to use their [health savings account] funds directly for the products and services that they value,” Brat told the Daily Signal.
The Republican plans would give consumers and businesses more freedom of choice. People would have the freedom to buy health insurance policies that suit their own needs with less interference from the government. Women who want to use contraceptives would have easier access to low-cost contraceptives with pre-tax dollars from their HSA. Insurance companies would still be free to cover contraceptives without a copay if they want.
The oppressive HHS mandate can be rolled back with the stroke of a pen. The only question is what Republicans are waiting for.
Originally published on The Resurgent