Office of the General Counsel

3211 FOURTH STREET NE  WASHINGTON DC 20017-1194  202-541-3300  FAX 202-541-3337

October 8, 2014

200 Constitution Avenue, NW

Washington, DC 20210

Attention: Preventive Services

Re: Comments on Interim Final Rules on Coverage of Certain

Preventive Services Under the Affordable Care Act

Dear Sir or Madam:

On behalf of the United States Conference of Catholic Bishops, we

• The interim final rules do not change the content of the mandate. As

before, non-grandfathered health plans and policies must provide

coverage for drugs and devices approved by the FDA as contraceptives

(including those that can cause an abortion), sterilization procedures for

women, and related education and counseling.

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“preventive services,” prescription contraceptives covered by this

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increased risk of a number of adverse health outcomes, including

conditions, such as AIDS and breast cancer, that other “preventive

services” are designed to prevent. The contraceptive mandate is

therefore at odds with the purpose of the preventive services provision of

ACA upon which that mandate purports to be based. In addition, insofar

as the mandate requires coverage of drugs and devices that can cause an

abortion, the mandate departs from a longstanding tradition in federal

law of protecting rights of conscience with regard to respect for unborn

human life. We have raised these issues in previous comments.

organizations, or even for the caring ministries provided by religious

orders themselves. The resulting gerrymander of the religious

community into those organizations and activities deemed “religious

enough,” and those deemed “not religious enough,” to qualify for the

exemption is entirely arbitrary and unsupported by any legitimate, let

alone compelling, government interest. Religious organizations that fall

on the non-exempt side of the religious gerrymander include those which

contribute most visibly to the common good through the provision of

health, educational, and social services. We have raised these issues in

previous comments.

for-profit organizations, insurers and third party administrators

(“TPAs”), and individuals enrolled in group plans or purchasing health

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are available at http://www.usccb.org/about/general-counsel/rulemaking.

minor children. We have raised these issues in previous comments.

• The interim final rules do not change the purpose or effect of the

EBSA Form 700, the self-certification form for “accommodated”

employers. As under the previous regulation, nonexempt, nonprofit

religious organizations with a religious objection to contraceptive

coverage (“eligible organizations”) remain subject to the mandate, but

are deemed to be in compliance with it if they provide their insurer or

TPA with a completed Form 700. Receipt of the form by the insurer (or,

organization’s own health plan is used as the mechanism or vehicle for

ensuring that such payments are made, thus depriving the organization of

the right to establish and maintain a health plan for its employees that is

consonant with its religious beliefs and commitments. We have raised

these issues in previous comments.

• The interim final rules allow what the government characterizes as an

“alternative” to the Form 700, but this mechanism suffers from many of

the same flaws as the Form 700. In lieu of executing and delivering the

Form 700 to the insurer or TPA, an eligible organization will be deemed

to be used as the mechanism or vehicle for ensuring that such payments

are made, depriving the organization of the right to establish and

maintain a health plan for its employees that is consonant with its

religious beliefs and commitments.

In short, the interim final rules fail to remedy the violation of religious

stakeholders with religious objections to the mandated coverage. Because it does

not further a compelling government interest by the means least restrictive of

religious exercise, the mandate continues to violate the Religious Freedom

Restoration Act (“RFRA”). This conclusion is borne out by the Supreme Court’s

decision in Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014), as well as

lower court decisions, the majority of which have granted some form of injunctive

relief to parties with a religious objection to contraceptive coverage.

Our more detailed comments follow.

services,” prescription contraceptives do not “prevent” disease. Instead, they

disrupt the healthy functioning of the human reproductive system, temporarily or

permanently creating the condition of infertility commonly seen as a health

problem.

Indeed, various contraceptives are associated with adverse health

outcomes, including an increased risk of such serious conditions as AIDS,

breast

and cervical cancer, cardiac failure, and stroke.

See our comments of March 20,

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either may be welcome depending on a woman’s individual goals. If that were true, however, it

would simply mean that prescription contraception and sterilization are “elective” items and not

part of basic health care. Supporters of the mandate have also emphasized its goal of expanding

use of “long-acting reversible contraceptives” that cannot be discontinued or removed without

the help of a physician. These drugs and devices are favored because their effectiveness is more

“independent” of “user motivation and adherence” – that is, they are less responsive to women’s

own changing goals. American College of Obstetricians and Gynecologists, “Increasing Use of

2011, at http://www.sciencedaily.com/releases/2011/10/111003195253.htm.

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of ovarian and endometrial cancer, but an increased risk of breast and cervical cancer and some

September 17, 2010, at 4. The contraceptive mandate is therefore at war with the

statutory provision on which it claims to be based, a provision that seeks to ensure

coverage of services that prevent disease, rather than increase the risk of it.

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Insofar as it requires coverage of abortifacient drugs and devices, the

mandate also departs from a longstanding tradition in federal law of respect for

moral and religious objections to abortion.

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The Administration has taken the

position that “conception” only occurs upon implantation in the womb. It claims

that these drugs and devices are therefore nothing but “contraceptives.” On the

beliefs are sincerely held, the government may not substitute its judgment for that

of the conscientious objector. 134 S. Ct. at 2777-79 (discussing Thomas v. Review

Board, 450 U.S. 707 (1981)). In any event, to the extent that the government

requires coverage of drugs that can cause an abortion after implantation, such as

ulipristal or “Ella,” the mandate would encompass “abortion” even as the

Care Mandate,” 79(1) The Linacre Quarterly 41-56 (Feb. 2012), at

https://www.familyplanning.net/sites/default/files/Significan-Risks-of-Oral-Contraceptives-

OCPs-Why-This-Drug-Should-Not-Be-Included-In-a-Preventive-Care-Mandate.pdf.

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some of these drugs is an especially glaring omission in light of the legislative history of the

“preventive services” provision, where sponsors of the provision cited the prevention of breast

and cervical cancer among its key goals. Cong. Record, Nov. 30, 2009, pp. S11986-91.

provisions dealing with abortion coverage and non-preemption of state law,

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well as the Weldon amendment.

II. The Regulatory Scheme Reflects an Arbitrary Gerrymander of the

Religious Community.

The government exempts houses of worship, but church-affiliated ministries

of service—such as Catholic hospitals, charities, and schools—remain subject to

the mandate. As has now become widely known, even the caring ministry of a

But just as religion is not limited to worship, the freedom of religion is not limited

to the freedom of worship. Religious freedom must also include the freedom to

abide by Church teachings, outside as well as inside the four walls of the

sanctuary.

By circumscribing its reach predominantly to houses of worship, the

exemption represents the narrowest protection of conscience in health care

anywhere in federal law. As noted in our prior comments, federal conscience

protections in the health care context are typically robust. Foremost among these

is the Church Amendment of 1973, 42 U.S.C. §300a-7. Its operative language—

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provision dealing with preventive services, “shall be construed to require a qualified health plan

to provide coverage of [abortion] services … as part of its essential health benefits for any plan

Labor/HHS funds may be made available to any government agency that discriminates against

any health plan on the basis that the plan does not provide abortion coverage).

laws over the forty years since its original passage.

the only complete solution to the religious freedom problems caused by the

mandate.

III. The Interim Final Rules Do Not Offer Even the Semblance of Relief for

For the overwhelming majority of stakeholders, the interim final rules offer

not even a gesture in the direction of conscience protection—neither the

freedom of these individual and institutional conscientious objectors. Because it is

not narrowly tailored to accomplish a compelling government interest, the mandate

violates RFRA, as most courts addressing the issue have either held or found likely

in granting some form of injunctive relief. The interim final rules do nothing to

cure this violation.

detail, that extension of the accommodation does not increase religious freedom, but decreases

it. By applying the accommodation to precisely the group of for-profit employers that the

Supreme Court has found fully exempt under RFRA in Hobby Lobby, subjecting those

employers to the accommodation would implicate those employers more—not less—in the

provision of the objectionable coverage.

questionable assumptions. The regulations continue to state that the insurer/TPA

providing or arranging for payment of contraceptives may not impose any cost-

sharing upon the employer or the employee for such payments. But if there is no

charge to the employer or employees, what funds will the insurer or TPA use to

pay for contraceptives? The government has long claimed that paying for

contraceptives is cost neutral because the insurer or TPA will be providing or

arranging those payments for the same persons as are enrolled in the plan. But the

evidence for this claim is at best inconclusive, with some commentators and

studies suggesting that the claim is positively false.

insurance companies said six of them expected costs to rise,” while “[n]one

predicted a net cost savings by reducing unintended pregnancies.”

One health

economist cites studies indicating that claimed “eventual savings of contraceptive

coverage may not necessarily accrue to an insurer.” Another source, cited by the

same economist, concluded, after a fuller review of the literature on the cost and

cost offsets of contraceptive coverage, that evidence that “contraceptive coverage

pays for itself in the long term” is “thin” and that “it almost certainly does not” pay

for itself “in the short [term].”

Indeed, even if there were cost savings from reduced childbirths, the claims

reimburse the insurer for contraceptives instead.

Thus, notwithstanding the regulatory prohibition against directly or

indirectly charging the employer or employee for contraceptives, the employer still

seems to be contributing to the objectionable payments. Put another way, if there

are actually reduced maternity claims against the employer’s plan as a result of its

employees receiving separate payments for contraceptives, then in the ordinary

course, those cost savings would result in the “accommodated” employer’s paying

a reduced premium in subsequent years. But under the existing regulatory scheme,

In the case of insured plans, the Administration claimed in the preamble to

its 2013 final rule that the cost of contraceptives could be treated as “an

administrative cost that is spread across the issuer’s entire risk pool, excluding

plans established or maintained by eligible organizations ….” 78 Fed. Reg. 39870,

39878 (July 2, 2013). This suggests that funds provided by third parties who are

strangers to the eligible organization and its group plan might ultimately be tapped

to pay for the cost of contraceptives for enrollees in the plan. However, the

Administration has pointed to nothing in ACA that contemplates or authorizes such

cross-subsidization.

contraceptives. Even if they kept pace, contraceptive payments would not be recovered until

months after the payments are made, which raises the question of what source of funds are to be

used in the meantime to make such payments.