A Compelling Interest? Using Old Conceptions of Public Health Law to Challenge the Affordable Care Act's Contraceptive Mandate

CitationVol. 31 No. 3
Publication year2015

A Compelling Interest? Using Old Conceptions of Public Health Law to Challenge the Affordable Care Act's Contraceptive Mandate

Joshua Joel

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Joshua Joel*


The history of public health law exposes the best and worst of humanity. In this century, the Nazis justified genocide of millions to advance public health.1 At the same time, efforts of public health activists have saved millions from death and disease.2 Although public health aims could arguably justify near-totalitarian government control,3 governments have also used public health powers to ensure healthier air to breathe, water to drink, and food to eat.4 While personal liberties have been crushed through forced racist segregation and sterilization on the platform of advancing public health,5 similar curtailment of individual freedoms has saved nations

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from disease through vaccination and quarantine.6 The study of public health must center on the tension between government coercive power and individual liberty.7

The Centers for Disease Control and Prevention (CDC) touts "family planning" as one of the ten great public health achievements of the twentieth century.8 Nevertheless, the availability of contraception has long been at the center of political, social, and legal controversy.9 On March 23, 2010, this controversy came to a head when President Barack Obama signed the Patient Protection and Affordable Care Act (ACA or the Act).10

One of the Act's provisions, referred to as the "HHS Mandate," requires health insurers to cover an essential benefits package, including prescription drugs.11 The Act delegates authority to the

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Department of Health and Human Services (HHS) to determine what prescription drugs the HHS Mandate includes.12 The HHS definition embraces all FDA-approved preventive care drugs including contraceptives such as Plan B ("morning-after pill"),13 Ella ("week-after pill"),14 and two intrauterine devices (IUDs) that can prevent the implantation of a fertilized egg.15 Employers who provide insurance and do not comply with the mandate are subject to heavy fines.16

Strong objection by the Roman Catholic Church and other religious groups prompted HHS to amend its guidelines and exempt non-profit religious institutions from the provision.17 Nonetheless,

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religious groups were unsatisfied.18 As a result, over 126 non-profit plaintiffs and 193 for-profit corporation plaintiffs filed lawsuits challenging the mandate's constitutionality.19 The circuit courts split in the cases decided on their merits, and the cases were appealed to the United States Supreme Court.20

In a landmark ruling, Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that closely held, for-profit corporations are entitled to free-exercise rights, and a regulation restricting the religious activities of a corporation must comply with the Religious Freedom Restoration Act (RFRA).21 The Obama administration had claimed that contraception coverage is a vital preventive care service within the government's coercive authority to advance public health.22 Although the Burwell majority criticized this argument,23 the Court found it "unnecessary to adjudicate this issue" and assumed

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"that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA."24

As demonstrated by Burwell, courts often do not to engage in critical analysis of public health legal doctrine because cases can often be resolved within a more formalistic legal framework.25 A more rigorous public health analysis could provide a more predictable framework by which courts could weigh the competing interests implicated by public health legislation and regulation, as well as provide tools to agencies to ensure the legality of their actions. Additionally, it could serve to remove the politicization of regulatory decision-making by vetting those actions within a preconceived framework. Therefore, the purpose of this Note is to suggest a framework by which public health initiatives should be analyzed when they conflict with religious freedoms.26

Part I of this Note presents arguments for and against the notion that mandating contraceptive coverage is an important public health initiative.27 Part II defines and delineates the scope of public health.28

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Part III approaches public health in the legal context: first, it delineates the federal government's constitutional power to enforce public health interests; second, it establishes a framework for evaluating public health initiatives; and third, it presents the standard by which courts balance public health interests against incursion on freedom of religion.29 Finally, Part IV suggests that the Jacobson factors presented in Part III should be used as a tool to assess whether a compelling interest exists when the federal government enacts legislation that restricts religious freedom, and analyzes the contraceptive mandate to demonstrate the benefit of such an analysis.30


The underlying goal driving the ACA's preventive care coverage requirement is the effort to transform the healthcare system from one that treats illness to one that sustains health.31 The ACA considers contraception to be a part of basic preventive care for women and therefore requires coverage without copayments.32 Mandating contraceptive coverage is not new; before the ACA, twenty-eight states had already required insurers to cover contraceptives, twenty of which exempted certain employers and insurers.33

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A. Arguments in Favor of the Contraceptive Mandate

Contraceptive mandates originated as a women's rights issue, but proponents also argue that mandates provide "direct, positive" effects on improving the health of women and infants.34 The primary use of contraception is to prevent pregnancy.35 The rate of unintended pregnancies in the United States is higher than in other developed countries,36 particularly among low-income women, women in their teens and early twenties, and minorities.37 One way to minimize unintended pregnancies is to expand access to contraceptive care.38 Therefore, mandate supporters argue that preventing unwanted pregnancies is an important public health initiative.39

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1. The Problem: The Effects of Unintended Pregnancy

In its report, the Institute of Medicine (IOM) based its recommendation on the argument that "unintended pregnancies have adverse health consequences for both mothers and children."40 Maternal mortality and risks associated with pregnancy are higher in unplanned pregnancies.41 The IOM found that consequences of unplanned pregnancies include inadequate prenatal care, depression, higher likelihood of smoking or consuming alcohol during pregnancy, and increased likelihood of preterm birth and low birth weight.42 Contraception also lowers abortion rates.43 The report further found that spacing pregnancies decreases the risk for adverse pregnancy outcomes and allows for women with chronic medical conditions to delay conception.44

Additionally, supporters urge that availability of contraception also provides non-contraceptive medical benefits.45 For example, women use contraceptives to treat menstrual disorders and even acne; contraceptive pills have also been known to reduce the risk of ovarian and endometrial cancer.46 Lastly, supporters argue that

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women receive social benefits from contraceptive use; pregnancy planning frees women to pursue higher education, professional opportunities, and financial security before establishing a family.47

2. The Solution: Easier and Cheaper Access to Contraceptive Care

Proponents of the contraceptive mandate argue that providing no-cost contraceptive care is the best way to address the problem of unwanted pregnancies.48 They point to statistics showing that increased contraceptive use parallels declines in unintended pregnancy and abortion.49 Also, improved access to contraceptives through expanded family planning programs in states like California and Arkansas precipitated a sharp decline in abortions and unintended pregnancies.50 The argument is that reducing cost will instigate greater usage of the most common and effective contraceptives, the pill and sterilization, and therefore the number of unintended pregnancies will decline.51

B. Arguments Against the Contraceptive Mandate

The mandate's opponents attack this chain of reasoning and suggest that contraceptive mandates are ineffective in the face of the "unique qualities of the sexual transaction," and that easy access to contraception may potentially increase unwanted pregnancy by increasing the demand for sex outside of marriage.52 Further, the mandate's opponents argue that the mandate will likely do little to

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decrease unwanted pregnancies because low-income women, who represent the highest number of unwanted pregnancies, are already "amply supplied with free or low-cost contraception" by state and federal governments.53 Women's failure to access this contraception indicates that their reasons for not using contraceptives have less to do with cost than with other factors that are not affected by the mandate.54

Perhaps the most salient argument against the contraceptive mandate is that its sole basis, the IOM report, is flawed.55 First, throughout its treatment of statistical evidence, the report fails to prove causation between unwanted pregnancy and health problems and does "no more than suggest correlation."56 In fact, the reality might be the reverse; it is highly plausible that a woman's predisposition to risk-taking accounts for both unintended pregnancies and problems such as smoking and drinking during pregnancy.57 Opponents also argue that increased...

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