The Administration’s interim final rule designating pregnancy as a disease and mandating that insurance plans cover 100% of the costs of contraception, sterilization, and abortifacient drugs has elicited predictable opposition. Here is the opening paragraph of a report by Nancy Frazier O’Brien in the Cathlic News Service:
The federal government’s mandate that all health insurance plans cover contraceptives and sterilization free of charge “represents an unprecedented attack on religious liberty” and creates “serious moral problems” that require its rescission, attorneys for the U.S. [Conference of Catholic Bishops] said in comments submitted to the Department of Health and Human Services.
The public comment itself (PDF) opposes the regulation “in its entirety” and, as expected, speaks extensively about the regulation’s apparent conflict with religious liberty. But the authors also recognizes the logical implication, which we addressed previously, that if abortifacient drugs qualify as “preventive services,” then all forms of abortion do as well.
The bishops do not limit their opposition to moral and religious grounds. They also argue it is illegal under various provisions of the ACA itself and the Weldon Amendment (a routinely enacted appropriations rider forbidding HHS from expending appropriated funds to pay for or provide insurance coverage for abortion). Thus, the bishops clearly recognize that if insurance plans can be required to include abortifacients, nothing prevents HHS from requiring insurance plans to cover abortion. Indeed, there would be no logical basis for not requiring insurance plans to cover abortion.
Finally, the bishops attack the scientific logic of deeming pregnancy a disease and contraception and sterilization as preventive services:
Subjecting a person to drugs and procedures that render a healthy bodily system dysfunctional—in this case, making a woman temporarily or permanently infertile—is not properly seen as basic health care, much less as an appropriate candidate for mandatory health coverage. Indeed, many contraceptive drugs, far from preventing disease and injury, are associated with adverse health outcomes. Just as these drugs are not “health” services, they are not “preventive” services; they prevent (or abort) pregnancy, and pregnancy is not a disease.
One final note of interest: The Bishops address, though with less emphasis, the health risks posed by oral contraceptives and abortifacients. Physicians and consumers may view these risks as minor or acceptable given the benefits, but it is unusual for the Department of Health and Human Services, via its Food and Drug Administration, to allow consumers to make pharmaceutical choices based on their own benefit-cost calculus. Oral contraceptives and abortifacients may be subject to a weaker regulatory risk-benefit test than other pharmaceuticals.