David French of National Review Online explores the latest U.S. Supreme Court casing involving the Affordable Care Act. This one involves a group of nuns who “along with numerous other religious organizations — are challenging their required role in facilitating their employees’ access to free contraceptives, including contraceptives that can function as abortifacients.”
First, it’s important to understand that the Sisters are not challenging a law passed by Congress. Instead, the contraception mandate is a rule concocted by bureaucrats. When Congress passed Obamacare it intentionally passed the statute with a number of vague directives that the Department of Health and Human Services (HHS) interpreted and expanded through the regulatory rulemaking process. Thus, the Obamacare statute itself does not contain a contraceptive mandate. Instead, it merely requires employers to “provide coverage” for “preventive services” for women, including “preventive care.”
Through the regulatory rulemaking process, the HHS used those provisions of Obamacare to justify the now-famous contraceptive mandate, requiring employer-provided health plans to provide multiple forms of contraceptives — including some that act as abortifacients — to its employees at no cost.
While HHS trumpeted its new rule as a great advance for women’s health, it exempted vast numbers of employers from its requirements — sometimes for mere convenience. It grandfathered existing plans that did not cover contraceptives, exempted small firms, and exempted “religious employers.” Together, these exemptions mean that companies employing tens of millions of employees are not subject to the mandate.
