The Contraception Mandate Was Not An Essential Part of Obamacare


Yesterday's Supreme Court decision in favor of Hobby Lobby has been portrayed as a blow to Obamacare, because it allows closely held corporations to opt out of some of the contraception coverage requirements imposed as part of the health law. That's not wrong, exactly, but it overstates the case, because it's not a very significant setback for the law.

That's because the contraception was never essential to Obamacare as conceived by its legislative authors. Indeed, as Ramesh Ponnuru notes at National Review, it was so inessential to the law that it wasn't included in the actual legislation. Instead, the mandate was put in place by the Obama administration's Department of Health and Human Services (HHS) as part of the law's essential benefits rule, which left an awful lot of discretion to regulators.

It's possible, in fact, that the law would not have passed had it explicitly included a contraception mandate. Remember that several Catholic Democrats, led by Rep. Bart Stupak, were among the final holdouts to agree to vote for the bill, which had already been passed in the Senate. Their votes were, by most accounts, crucial to its passage, and they agreed to vote for the bill only after making a deal with the White House that would prohibit federal funding to be used for abortions.

Two years later, Stupak said that he believed the HHS mandate violated the White House deal, as well as existing law, because it allowed for federal funding of abortifacients. It's obviously impossible to be certain about how things might have turned out in a counterfactual like this, but it's certainly easy to imagine that if the mandate had been in place prior to the law's passage in the House, it would not have garnered the support of Stupak and his fellow Catholic Democrats—and would have died in the House as a result.

That is not to say that the decision isn't important in other ways. But as a blow to Obamacare it doesn't pack much of a punch. 

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  1. …which left an awful lot of discretion to regulators.

    Congress transferring its duty to legislate to bureaucrats? Say it isn’t so!

  2. Two years later, Stupak said that he believed the HHS mandate violated the White House deal, as well as existing law, because it allowed for federal funding of abortifacients.

    Like you didn’t give them the vote in exchange for a lobbying job.

  3. FWIW, I think Stupak and the votes he commanded at the time would have caved without the deal. No way were they going to be the ones that killed the bill.

  4. I must say I quite enjoyed the sad music that NPR played this morning after the report on this decision.

    Has anyone yet posted Debbie Wasserman-Nasal’s insanely un-self-aware comment? Something about “the long arm of government reaching into women’s bodies” — a real Capt. Picard hand-on-forehead moment.

    1. Along with the broader and more obscure “Corporations are people, but women aren’t” I’ve heard about the web. I can see the Democrats continuing with their “War on Women” rhetoric, but I think this is all clearly in the category of “Red Meat for the Base”. I can’t see undecideds being swayed by this issue.

  5. it is a sad day when something as common sensical as the notion that one person cannot be forced to buy you things is treated as a win for liberty, but that’s where we are. Add to that the crazy notion that you can’t forced to pay for membership in a club you don’t want to join.

  6. And here’s another reason progressives are such loathsome creatures:

    The construction of the exchanges also made it easier for insurers to fashion these restrictive networks and formularies. For example, the ACA allows health plans to bid for consumers on a county-by-county basis. That has led to the creation of networks of providers that are sometimes only countywide. These extremely narrow arrangements are being referred to as “Exclusive Provider Organizations.”

    Nationwide, about half of the ACA plans feature narrow networks, according to consulting firm McKinsey & Co. On average, these narrow plans comprise about 17% fewer doctors than comparable commercial plans with broader networks.

    Since many plans have limited or no co-insurance outside of their networks (or drug formularies) patients who seek care outside of these brief lists can be saddled with the full cost of their care. Under many plans, when patients are out of their networks, these costs don’t count against deductibles or out of pocket maximums.

    Progressives’ Faustian Bargain on Narrow Networks

  7. Wait…the contraception mandate is unimportant, but explicitly including it in the bill woukd have sunk the bill?

    And it’s so unimportant the Dems will ride it all the way to the election?

    1. It is unimportant, in terms of “will this stop Obamacare from functioning as ostensibly intended.” In other ways, as you imply, less so?but I wouldn’t call this “a blow to Obamacare” either, and the news reports I saw last night implying this was the end of the world were a little over the top.

      1. I agree with this analysis. This was a narrow ruling, that only affected contraception offered by privately held companies. This ruling will have a negligible effect outside of political commentary.

        Indeed, if the Left had been smart enough to say, “Oh well, no big deal”, it wouldn’t have even been newsworthy beyond the day it was announced.

      1. With a nice Chianti!

  8. the law’s essential benefits rule, which left an awful lot of discretion to regulators.

    Emphasis added. Sweet. 8-(

    Again: if you have never looked at the actual legislation, you owe it to yourself to do so.

  9. Jesus, based on the amount of sever butthurt that has been expressed by a small segment of people, you’d think that the SC unilaterally instituted forced pregnancy. All the damned memes talking about how the SC took away a woman’s right to decide whether she gets pregnant or not are just ridiculous. Now, if the butthurt was about the SC giving the courts the ability to pick and choose what determines a valid religious objection to a law, then I would be more sympathetic.

  10. Actually, as originally passed by Congress, and signed by the President, the PPACA mentioned contraception, or abortion, not at all.
    This was all added in the rule-making process under the authority granted to “the Secretary”.

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