A few days ago, the Obama Administration finally and officially promulgated its “preventive services” mandate with only a very narrow conscience exception for religious institutions.
However, the lack of an adequate conscience exemption is not all that is wrong with the mandate. The rule as promulgated is seriously flawed—it is contrary to the legislative intent of the original “preventive services” amendment to what became the Affordable Care Act (ACA), it implies that pregnancy is a disease, and it mandates coverage of drugs and devices with life-ending mechanisms of action in nearly every health insurance plan in America.
When Congress passed ACA, the law required that all private and public health insurance plans fully cover, without co-pay, “preventive services” for women. Not defining it in the statute, Congress delegated to the Department of Health and Human Services (HHS) the determination of what preventive services for women includes. Senator Barbara Mikulski, who authored the preventive services provision of the ACA, was very clear during the debates on the floor surrounding this amendment that the rule should not include coverage for abortion “in any way.”
Contrary to Senator Mikulski’s assurance, by including all FDA approved “contraceptives” under the definition of “preventive services” in private and public health insurance plans, the HHS rule is requiring that drugs and devices with life-ending mechanisms of action—including the abortion-inducing drug ella—be funded by nearly every health insurance plan in America.
While there are several drugs that the FDA defines as a “contraceptive” that can end the life of an embryo by making the uterus inhospitable for a developing human embryo to implant—ella can kill a human embryo even after implantation has occurred. Mandated coverage for ella–-though “indicated” for “contraceptive” use—opens the door to off-label intended-abortion usage of the drug being funded by all health insurance plans. Thus, the HHS rule is a not so subtle abortion-mandate.
Further, the legislative intent behind the rule is clear—the mandate is supposed to cover services for women that prevent disease, such as breast and cervical cancer screenings—not abortion. When asked to clarify if the preventive services mandate would include abortions or not, Senator Barbara Mikulsi, the Senator who introduced the amendment, explained:
This amendment does not cover abortion. Abortion has never been defined as a preventive service. This amendment is strictly concerned with ensuring that women get the kind of preventive screenings and treatments they need to prevent diseases particular to women such as breast cancer and cervical cancer. There is neither legislative intent nor legislative language that would cover abortion under this amendment, nor would abortion coverage be mandated in any way by the Secretary of Health and Human Services.[i]
The inclusion of drugs with life-ending mechanisms of action in this insurance requirement is clearly outside of the legislative intent of this law. Further, by including these drugs under the definition of “preventive services,” HHS is implying that pregnancy is a disease—when in fact, pregnancy is a healthy state for women. This mandate is a huge overstep beyond the discretion that Congress gave to HHS.
This rule is seriously flawed. It needs more than a stronger and more inclusive conscience exemption; it needs to be rescinded in its entirety.
 Cong. Rec. S12274 (daily ed. Dec. 3, 2009) (colloquy between Sen. Mikulski and Sen. Casey), available at https://thomas.loc.gov.
LifeNews Note: Bill Saunders is an AUL attorney and LifeNews blogger, Mary Novick is an AUL paralegal.