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.