When health care reform legislation was passed in 2010, it included a statutory prohibition on mandatory coverage of abortion services. But this prohibition may prove to be illusory due to some recent developments. The health care reform legislation requires health plans to provide coverage for preventive health services without co-pays or deductibles. This includes plans offered in the individual market and employer plans unless they are “grandfathered” plans. Employer plans may, however, lose their grandfathered status if any significant changes are made to the plan. Thus, the U.S. Department of Health and Human Services (HHS) expects that by 2013, the number of individuals in employer plans covered by its preventive services rule will rise to 78 million, for a total of 88 million Americans whose preventive services coverage will be mandated by the health care reform legislation. 

In 2010, HHS issued a rule delineating some of these preventive services, but deferred a decision on the scope of preventive services for women until Aug. 1, 2011. That set off an intensive lobbying campaign by Planned Parenthood and other groups to include contraceptive coverage in preventive services. On July 19 the prestigious Institute of Medicine weighed in on this debate by recommending that a full range of FDA-approved contraceptive methods should be included in the definition of preventive services. 

The U.S. Conference of Catholic Bishops has taken the position that contraceptives should not be included in the package of preventive services. Indeed, treatment of contraceptives as preventive services is a bit bizarre. As the USCCB noted, preventive services would normally be used to screen for or prevent serious illnesses or diseases (e.g., cholesterol screenings, diabetes screenings, routine immunizations, etc.).  

But pregnancy is not a disease. It is typically a normal, healthy condition that will result in a live birth. Contraceptives are usually prescribed for personal or lifestyle reasons rather than for treatment of a particular medical condition. Moreover, use of contraceptives increases the risk of various diseases, including heart-related conditions. 

If adopted, it is probable that the rule treating contraceptives as preventive services would mandate coverage of all forms of FDA-approved contraceptives. This would likely include coverage of ella, a controversial drug approved by the FDA in 2010 as an emergency contraceptive for use up to five days after unprotected sex. In its chemical composition and mechanism, ella is very similar to RU-486, a drug that is approved by the FDA for inducing abortions.  

RU-486 is subject to certain restrictions: It is not available in pharmacies and must be obtained through a physician. It is only supposed to be used during the first 49 days of pregnancy. And due to the possibility of complications, physicians prescribing RU-486 are supposed to be able to provide any necessary surgery or have made prior arrangements for it. None of these restrictions are applicable to ella, even though it is expected that it will be used off-label in the same manner as RU-486. 

The USCCB has noted that since ella “can disrupt an established pregnancy weeks after conception has taken place,” mandating coverage of all FDA-approved contraceptives as a preventive service is in “direct tension with statutory prohibition on mandating any abortion coverage.”  

The USCCB has also noted that in light of its widespread application to individual and group health insurance plans, the contraceptive mandate would amount to an “unprecedented” attack on the conscience rights of religious employers and individuals with a moral objection to these procedures. Currently, under federal law employers and health insurers are free to purchase and sell insurance plans without coverage for contraception or abortion. With contraceptive coverage (including access to ella) designated as preventive services, coverage will be mandatory for all new plans and any employer plans that lose their grandfathered status. Thus, not only contraceptives but also nonsurgical abortions will be available without cost. Many of us with moral objections will end up subsidizing this coverage with our premium dollars. This development blurs the already indistinguishable line between abortion and abortifacient contraceptives and furthers the agenda of abortion providers advocating more extensive use of nonsurgical abortions. 

Leonard J. Nelson III is a professor at the Cumberland School of Law of Samford University in Alabama and the author of “Diagnosis Critical: The Urgent Threats Confronting Catholic Health Care” (OSV, $29.95).