Mandated Contraception Coverage: Overview

Introduction

“Mandated contraception coverage” refers to a portion of the federal Patient Protection and Affordable Care Act (PPACA or ACA) that requires health insurance plans to include birth control. Kathleen Sebelius, the secretary of the Department of Health and Human Services (HHS) under then president Barack Obama, revealed a federal mandated contraception law on January 20, 2012. The law decrees nearly all employers offering health insurance plans must provide free FDA-approved contraception to women; those offering certain approved, pre-ACA plans were not required to begin providing this coverage.

Most notably, certain religious groups—churches and houses of worship—are not required to comply with mandated contraception, but the law, when it was first instituted, applied to all hospitals, universities, and organizations regardless of their religious affiliation. Religious groups have opposed the law and defended their right to religious freedom guaranteed under the First Amendment of the Constitution.

The decision of the Department of Health and Human Services to implement the law was significantly influenced by the health benefits birth control provides for women. Birth control is the most commonly prescribed drug for women; therefore, mandated contraception would reduce the overall cost that a woman pays for her health care. However, the decision of the Obama administration to introduce the law was confronted with fierce opposition from Republicans and religious leaders.

Understanding the Discussion

Oral contraceptive: A medication taken by mouth that typically contains estrogen and progestin to prevent pregnancy; some formulations contain progestin only.

Emergency contraception: A pill that can prevent pregnancy if taken within five days after unprotected sexual intercourse; also known as the “morning-after” pill.

Female condom: A latex pouch with rings on both ends that is inserted into the vagina to prevent the entry of semen and bodily fluids.

Intrauterine device (IUD): A T-shaped contraceptive device inserted into the uterus.

Rhythm method: A calendar-based birth-control method involving not having sex during the part of a women’s menstrual cycle when she is fertile.

Planned Parenthood Federation of America: A federally subsidized nonprofit organization that supports women’s health and their right to contraception.

Comstock Act of 1873: A federal law prohibiting the transportation of obscene materials via mail, including contraceptives and information on birth control.

Department of Health and Human Services (HHS): The United States executive department dedicated to protecting and enhancing the health of American citizens.

Food and Drug Administration (FDA): The HHS agency responsible for ensuring the safety and effectiveness of food, cosmetics, medications (both prescription and over-the-counter), and medical devices.

History

Birth control is not a Western invention, nor a product of the modern world—for thousands of years people have been trying to control the size of their populations, and families have attempted to reduce their number of children because of economic, social, and health-related concerns. Ancient contraceptive methods, however, were often ineffective and posed serious or even fatal health risks.

Birth control dates back to 3000 BCE, when condoms made of animal intestines and linen were used to prevent pregnancy. Abortions also date back to ancient times: documents uncovered in Ancient Egypt reveal methods using pennyroyal, an herb that terminated pregnancy but could be fatal to the mother. Other ancient contraceptive methods include vaginal cylinders known as pessaries that prevented sperm from entering the cervix; douching after intercourse to expel sperm; a medicinal plant called silphium; and rhythm methods. Soranus, a Greek physician, suggested heavy exercise following intercourse and jumping movements to discharge seed from the womb.

The first rubber condoms were introduced in 1838, but birth control methods were routinely suppressed by political and religious opposition in the nineteenth century. In 1873, for instance, the federal Comstock Act enforced a ban on transporting contraception or information about birth control via US mail. A number of states passed complementary measures; among the most stringent was Connecticut’s 1879 law banning the use of birth control altogether, with violators fined and imprisoned for up to one year. The Catholic Church has on many occasions asserted its categorical objection to all forms of artificial birth control, a stance that continues to be among the most influential voices in opposition to contraception. Abstinence is the only method of birth control the Catholic Church supports.

In 1905, President Theodore Roosevelt publicly condemned birth control as a “moral disease.” This remark was met with opposition from social activists and advocates of birth control, who began to speak out in favor of contraception. But the Comstock Act was not repealed until 1938, when a Supreme Court case, United States v. One Package of Japanese Pessaries, involving Margaret Sanger, an American pioneer in birth control activism, overturned the law. In 1916, Sanger opened the first birth control clinic in Brooklyn, New York. She also founded the American Birth Control League (now Planned Parenthood), an organization devoted to women’s health and their right to contraception.

Sanger and Katherine McCormick, an American biologist, sought the help of Dr. Gregory Goodwin Pincus, an American biologist and researcher, in 1953 with the intent of developing an oral birth control pill. Seven years later, the FDA approved the first oral contraceptive. Over one million women were using the birth control pill by 1963.

President Dwight D. Eisenhower issued a controversial statement in a 1959 press conference stating that government involvement in birth control was “not our business.” Nevertheless, the law prohibiting birth control in Connecticut was eliminated in Griswold v. Connecticut, a 1965 Supreme Court case that ruled prohibiting birth control is unconstitutional. In 1972, another Supreme Court case, Eisenstadt v. Baird, overturned a Massachusetts law forbidding unmarried women to purchase oral contraceptives, thus establishing that all US citizens, married and unmarried, are legally allowed the right to contraception. A year later, approximately ten million women were using the birth control pill.

The birth control pill hit the $150 million sales mark in 1968. The dangerous side effects of the pill, however, were documented in women’s health advocate Barbara Seaman’s book The Doctor’s Case against the Pill. This book influenced US senator Gaylord Nelson to advocate for awareness of the pill’s potential dangers. Nelson was responsible for prompting an FDA warning and side effect label to be placed on oral contraceptives.

The 1990s gave way to a rapid increase in the safety and effectiveness of emergency contraception—commonly referred to as the “morning-after” pill—which became widely available in 1992. Improvements to birth control pills decreased dangerous and unwanted side effects. Other methods, such as the hormonal patch, transcervical female sterilization, and female condoms, were introduced in the 1990s and early 2000s.

Oral contraceptives have also been prescribed as treatments for various medical conditions, including amenorrhea (lack of menstruation), dysmenorrhea (heavy, painful periods), endometriosis, polycystic ovary syndrome, and primary ovary insufficiency.

Mandated Contraception Coverage Today

Not only has birth control become more effective, scientific progress has reduced the health risks associated with preventing pregnancy. New and improved contraceptive methods have been introduced in the twenty-first century. Seasonale, for example, is an oral contraceptive introduced in 2003 that reduces a woman’s period cycle to four times per year. An intrauterine device (IUD) was developed to release progesterone, a hormone that plays a role in the menstrual cycle, with a 99 percent success rate. The Lea Shield is a type of cervical cap—a device similar to a diaphragm—designed to cover the cervix and prevent sperm from entering the uterus.

Women have more options for contraception than ever before, and the birth control industry continues to grow, with a myriad of new methods on the horizon. Potential methods include a contraceptive gel applied to the skin and a birth control pill for men that prevents the release of sperm during ejaculation.

The public dialogue over birth control continues, with religious and political interests pitted against each other. The Obama administration was confronted by significant religious opposition to the mandate’s demand for health insurance plans to offer free contraception to women. Republicans also opposed this policy on religious grounds.

Obama attempted to appease religious opponents with a compromise allowing religious organizations to fill out paperwork stating their moral objection to contraception, which would then require insurers to cover the full cost of contraception for the organization’s employees without financial contribution from the employer. Religious groups, however, believed this accommodation still violated their religious beliefs. In 2014, two companies owned by Christian families, Hobby Lobby and Conestoga Wood Specialties, brought lawsuits arguing that they should not be required to provide contraceptive coverage to their employees as it violated their freedom of religion. The Supreme Court found in favor of the companies, setting a precedent that closely-held for-profit businesses may be exempt from laws that would violate the religious beliefs of their owners. The decision was controversial, with some celebrating it as a triumph of religious freedom, while others viewed it as an attack on women’s rights to reproductive autonomy and worried that companies might use this precedent to claim exemption from anti-discrimination legislation. Some feared that coverage for other medical treatments, such as blood transfusions, might soon become subject to similar religious exemptions.

Between the 2014 Hobby Lobby decision and late 2016, about 150 organizations notified the government of their objection and a small, but unspecified, number of others informed their insurers; however, the total women affected by those employers' objections was difficult to ascertain. By 2016, an estimated 55 million women were able to access no-cost contraception.

In October 2017, the Donald Trump administration sought to broaden the conceptive-coverage exemption, effective immediately, allowing individuals or entities to file notice of objection over religious beliefs or moral convictions and granting them access to the accommodation mechanism. About two hundred entities then engaged in litigation were expected to benefit from the rule change. The move spurred legal challenges from the attorneys general of Massachusetts, California, Virginia, Delaware, Maryland, and New York, and from the American Civil Liberties Union. In December 2017, two US district courts found that the administration had violated the law governing notice and comment periods for rule changes, and issued an injunction on the interim rule. When the nearly identical final rule was issued the following November, prominent medical associations, such as the American College of Obstetricians and Gynecologists and the American Academy of Family Physicians, objected that the rule interfered unduly in the patient-physician relationship and cut access to vital preventive care. Thirteen states sued on administrative, civil rights, and constitutional grounds, and in January 2019, two federal courts enjoined the final rule until after those cases could be resolved. The Third Circuit Court of Appeals affirmed a preliminary nationwide injunction on the final rule. The Ninth Circuit Court of Appeals upheld the injunction but limited it to the five states which had sued. In June 2019, the Supreme Court declined to review the Ninth Circuit's ruling, but in Little Sisters of the Poor v. Pennsylvania (2020) reversed the Third Circuit's nationwide injunction. The court also ruled in Little Sisters of the Poor that federal agencies had the authority under the Affordable Care Act to adopt broad religious and moral exemptions to the contraceptive mandate. The ruling meant that employers could deny coverage of contraceptives to their employees or students on religious or moral grounds, and made their shared-cost access to contraception optional.

In 2022, the Supreme Court overturned abortion rights under Roe v. Wade (1973) in Dobbs v. Jackson Women's Health Organization. After Dobbs, some liberal states sought to affirm the right to contraception set in Griswold v. Connecticut, while some conservative states looked for ways to restrict contraceptive access, particularly for forms of contraception erroneously thought to be abortifacients. Such debate over the right to contraception increased demand for permanent contraception, such as vasectomies and hysterectomies, after Dobbs. In 2023, the Biden-Harris administration proposed rules to strengthen access to birth control coverage under the ACA.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

Bibliography

Bingman, Kristine M., et al. "Federal Judges Halt Expanded Exemption From ACA Contraceptive Mandate." The National Law Review, 15 Feb. 2019, www.natlawreview.com/article/federal-judges-halt-expanded-exemption-aca-contraceptive-mandate. Accessed 28 May 2024.

Brooks, Krista, Diana Zuckermann, and Morgan Wharton. “Birth Control Pills: What You Need to Know.” National Research Center for Women and Families, July 2012, www.center4research.org/birth-control-pills-need-know/. Accessed 28 May 2024.

"Coverage of Certain Preventive Services under the Affordable Care Act: Proposed Rules." CMS.gov, Centers for Medicare and Medicaid Services, 30 Jan. 2023, www.cms.gov/newsroom/fact-sheets/coverage-certain-preventive-services-under-affordable-care-act-proposed-rules. Accessed 28 May 2024.

Filipovic, Jill. "How American Women Could Lose the Right to Birth Control." TIME, 20 May 2024, time.com/6977434/birth-control-contraception-access-griswold-threat/. Accessed 28 May 2024.

Gandelman, Joe. “Poll: Big Support for Mandated Contraception Coverage.” Moderate Voice, 2012, p. 9. EBSCOhostAccessed 28 May 2024.

Gordon, Linda. The Moral Property of Women: A History of Birth Control Politics in America. U of Illinois P, 2002.

Haberkorn, Jennifer. "Two Years Later, Few Hobby Lobby Copycats Emerge." Politico, 11 Oct. 2016, www.politico.com/story/2016/10/obamacare-birth-control-mandate-employers-229627. Accessed 28 May 2024.

Keith, Katie. "Supreme Court Upholds Broad Exemptions to Contraceptive Mandate—For Now." Health Affairs, 9 July 2020, www.healthaffairs.org/content/forefront/supreme-court-upholds-broad-exemptions-contraceptive-mandate-now. Accessed 28 May 2024.

Kliff, Sarah. “Lawmakers Debate Mandated Coverage of Contraceptives in Health-Care Law.” Washington Post, 16 Feb. 2012.

“Mandated Contraceptive Coverage.” Congressional Digest, vol. 91, no. 4, 2012, p. 97. EBSCOhost Accessed 28 May 2024.

Novack, Sophie. “What the Religious Right Thinks of Republicans’ New Birth Control Platform.” National Journal Daily AM, 25 Sept. 2014, p. 5.

Richey, Warren. “Obamacare Contraceptives Impose Religious Burden, US Appeals Court Rules.” Christian Science Monitor, 27 June 2013, www.csmonitor.com/USA/Justice/2013/0627/Obamacare-contraceptives-impose-religious-burden-US-appeals-court-rules. Accessed 28 May 2024.

Roebuck, Jeremy. “High Court: Certain Firms Can Deny Contraception Coverage.” Philadelphia Inquirer, 30 June 2014, www.inquirer.com/philly/business/20140701‗High‗court‗‗Some‗firms‗can‗deny‗contraception‗coverage.html. Accessed 28 May 2024.

Sobel, Laurie, et al. "New Regulations Broadening Employer Exemptions to Contraceptive Coverage: Impact on Women." KFF, Henry J. Kaiser Family Foundation, 19 Nov. 2018, www.kff.org/health-reform/issue-brief/new-regulations-broadening-employer-exemptions-to-contraceptive-coverage-impact-on-women. Accessed 28 May 2024.

Thompson, Dennis. “The ‘Hobby Lobby Ruling’ and What It Means for US Health Care.” HealthDay Consumer News Service, Health Day, 25 July 2014, consumer.healthday.com/public-health-information-30/government-health-news-339/the-hobby-lobby-ruling-and-what-it-means-for-u-s-health-care-690070.html. Accessed 28 May 2024.