Undoing the HHS mandate

On Oct. 6, the U.S. Department of Health and Human Services issued an interim rule (with the possibility of revision before becoming final) reversing the regulation that had driven the Little Sisters of the Poor and dozens of other plaintiffs to the federal courts seeking on religious freedom grounds to refuse to provide free contraception in their employee health insurance plans. Three features of the 2012 mandate and its reversal stand out: their content (which can get legally intricate); their political resonance; and their salience with women.

Without straying into excruciating legal detail, the mandate was a decision by the Obama-era HHS (with the support of the president) to require employers of a certain size — including religious bodies, but with the exception of churches, associations of churches and their “integrated auxiliaries” — to provide free contraception in all health insurance policies. HHS was interpreting a provision in the health care law requiring the free provision of “preventive” health services to women. HHS relied upon the recommendation of an advisory body, the Institute of Medicine, which convened a panel stacked with former employees and contributors to Planned Parenthood. HHS admitted that several of the required “contraceptives” could actually act to destroy already-formed human embryos.

Hobby Lobby, a for-profit corporation run in accordance with religious principles, won a lawsuit at the Supreme Court under the Religious Freedom Restoration Act, allowing them to refuse to insure for potentially abortifacient drugs and devices. At the time of the reversal, the Little Sisters of the Poor and other religious groups were still embroiled in a separate lawsuit over whether they could refuse to comply with an amended regulation requiring them to allow the government to use their health insurance to trigger the government’s furnishing contraceptives directly to their employees who wished to have them. The new regulation keeps the mandate in place for most employers but allows religious and moral conscientious objectors — including but not limited to corporations, small businesses, educational institutions and health insurers — to follow their faith. It still is necessary to achieve Department of Justice cooperation to actually conclude the lawsuits filed by the Little Sisters of the Poor and others. But given the federal government’s new position that the mandate violates religious freedom rights, a resolution should be forthcoming.

It was always believed that the mandate was about politics, not health care. When it was issued, there was no widespread outcry among women for free contraception, given its general affordability and the facts that most insurance policies already covered it and that nearly 90 percent of sexually-active women already were using it. Also, federal and state governments already provide billions of dollars annually of free or very low-cost contraception to poorer women. The mandate’s political nature was best revealed in a 2017 book by Barack Obama’s director of faith outreach, Michael Wear, “Reclaiming Hope” (Thomas Nelson, $25.99). Wear recounts how Obama campaign advisers urged the president to retain the mandate and highlight his disagreement with the Catholic bishops as a strategy to paint opponents as Neanderthal on the subjects of woman and family planning.

The mandate has been a cause célèbre for women’s groups on both sides. In a continuation of a decadeslong theme, groups like Planned Parenthood and the ACLU claim that contraception is the core of women’s freedom, as a matter of women’s health and their social and economic equality. In opposition, women’s groups like my own Women Speak for Themselves have repeatedly and empirically dismantled the government’s claims that contraception improves women’s health or advances their equality and freedom.

In Women Speak for Themselves’ scholarship, amicus briefs and fact sheets, it is demonstrated with federal sources that: contraception is associated with an increase in both nonmarital births and abortions over five decades, and no reduction in “unintended births”; there is no evidence showing that unintended births “cause” the negative outcomes the government claims (domestic violence, depression and others); women — who practice religion more than men — wish to preserve religion’s robust witness to the positive effects upon women of sexual integrity and natural family planning.

Several months ago, Planned Parenthood’s former research arm and the nation’s most powerful contraceptive promoter, the Guttmacher Institute, reported that five years of the mandate had yielded no change whatsoever in sexually active women’s use of contraception. Contraception has been and will continue to be cheap and widely available. More than 99 percent of American women will not be affected by the government’s latest rule.

The mandate controversy, however, has allowed Americans — Catholic or not — to reflect deeply upon competing claims about contraception’s social meaning and effects, and its bizarre place at the heart of some versions of feminism. It also has allowed the Catholic Church the opportunity to make the contemporary case not only for religious freedom but also for the deep scientific, social and even feminist wisdom of its longstanding objection to separating sex from children and from marriage in the minds and lives of human beings.

Helen Alvaré is a law professor at George Mason University.