September 30, 2011
The Honorable Kathleen
Sebelius
Secretary of Health and Human
Services
Donald M. Berwick
Administrator, Center for
Medicare & Medicaid Services
U.S. Dept. of Health and
Human Services, Room 445-G
200 Independence Avenue, SW
Washington, DC 20201
Attention: CMS–9992–IFC2
Phyllis C. Borzi
Assistant Secretary
Employee Benefits Security
Administration
Room N-5653
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210,
Attention: RIN 1210–AB44
Steven T. Miller
Deputy Commissioner for
Services and Enforcement
Emily S. McMahon
Acting Asst. Secretary of the
Treasury
Internal Revenue Service
U.S. Department of the
Treasury
1111 Constitution Avenue, NW
Washington, DC 20224
Attention: REG–120391–10
Re: Interim Final Rule Regarding Group Health Plans and Health Insurance Issuers
Relating to Coverage of Preventive Services Under the Patient Protection and Affordable
Care Act
Dear Secretary Sebelius, Administrator Berwick, Asst. Secretary Borzi, Deputy Commissioner
Miller, and Acting Asst. Secretary McMahon:
The National Partnership for Women & Families wants to commend the Obama Administration
for the extraordinary effort that has gone into implementing the Patient Protection and
Affordable Care Act (ACA) to date. We have long advocated for reforms that ensure access to
comprehensive, affordable health care for all women and their families, with an emphasis on the
needs of low-income women. As such, we applaud the Department of Health of Human Services
(HHS) for its announcement that it would adopt the Institute of Medicine’s recommendations to
include eight categories of preventive services, including all FDA-approve contraceptive
methods, under the Women’s Health Amendment (WHA) to the ACA in the interim final rule.
These preventive health measures will do a tremendous amount to improve the health of women
and families. The benefits of family planning to women and to babies are well-documented, and,
unfortunately, the cost of contraception serves as a substantial deterrent to women obtaining the
contraceptive services that they need. Thanks to the Health Resources and Services
Administration’s (HRSA) Guidance many more women will now be able to afford the
contraception that they need to plan the right time when and under what circumstances to have
children. This is a huge victory of the ACA for women, and we commend HHS for its leadership
on this issue.
1875 connecticut avenue, nw ~ suite 650 ~ washington, dc 20009 ~ phone: 202.986.2600 ~ fax: 202.986.2539
email: [email protected] ~ web: www.nationalpartnership.org
2
We were very disappointed to see, however, that the interim final rule included the option of an
exemption from this provision for certain religious employers allowing them to refuse to provide
their employees with the comprehensive health services available to all other women. The
National Partnership believes strongly that all women – regardless of their employer – deserve
access to comprehensive reproductive health services. The religious exemption that is part of the
interim final rule was not contemplated by Congress and puts the health of certain women at risk.
And, as explained in detail below, this provision is impermissible under the Affordable Care Act
and Title VII of the Civil Rights Act of 1964. For these reasons, we strongly urge HHS to
remove the refusal clause provision from the rule and protect the health of all women.
All Women Deserve Equal Access to the Important Health Benefits of Contraceptive Coverage
This interim final rule discriminates against women who work for religiously-based employers.
Virtually all women (99%) will use contraception during their reproductive lives.1 Those
numbers remain constant for Catholics (98%) and only 2% of Catholics use natural family
planning as their method of contraception.2 These women deserve access to the same preventive
health services as all other women. As the IOM Committee convened by HHS to assist it in
making a determination about coverage under this provision noted in its report, access to
contraceptive coverage is vital to women’s health. Unintended pregnancy has serious
implications for women, babies and for public health, as the IOM Committee explained:
The risk factors for unintended pregnancy are female gender and reproductive capacity.
…
[A]ll sexually active women with reproductive capacity are at risk for unintended
pregnancy. … Pregnancy spacing is important because of the increased risk of adverse
pregnancy outcomes for pregnancies that are too closely spaced (within 18 months of a
prior pregnancy). Short interpregnancy intervals in particular have been associated with
low birth weight, prematurity and small for gestational age births. In addition, women
with certain chronic medical conditions (e.g., diabetes and obesity) may need to postpone
pregnancy until appropriate weight loss or glycemic control has been achieved. Finally,
pregnancy may be contraindicated for women with serious medical conditions such as
pulmonary hypertension (etiologies can include idiopathic pulmonary arterial
hypertension and others) and cyanotic heart disease, and for high-risk women with the
Marfan Syndrome. …
The IOM Committee on Women’s Health Research recently identified unintended
pregnancy to be a health condition of women for which little progress in prevention has
been made, despite the availability of safe and effective preventive methods. This report
also found that progress in reducing the rate of unintended pregnancy would be possible
by “making contraceptives more available, accessible, and acceptable through improved
1
Rachel K. Jones and Joerg Dreweke, Countering Conventional Wisdom: New Evidence on Religion and
Contraceptive Use, Guttmacher Institute (April 2011), available at http://www.guttmacher.org/pubs/Religion-andContraceptive-Use.pdf.
2
Id.
3
services. Another IOM report on unintended pregnancy recommended that “all
pregnancies should be intended” at the time of conception and set a goal to increase
access to contraception in the United States. …
Family planning services are preventive services that enable women and couples to avoid
an unwanted pregnancy and to space their pregnancies to promote optimal birth
outcomes.3
The IOM Committee was made up of a wide variety of medical experts, including specialists in
disease prevention, women’s health issues, adolescent health issues, and evidence-based
guidelines. The IOM Committee thoroughly examined the scientific evidence over a period of
six months. As noted above, their scientific findings made clear that contraceptive coverage is
vital to women’s health and to the public health of the United States. The HRSA guidelines do
much to address the issues identified by the IOM Committee and to move the United States in
the right direction, but they should do so without leaving some women behind. Currently 28
states require that insurance plans include coverage of contraceptives if other similar services are
covered. Eight of those states do not provide any sort of exemption.4 The interim final rules
should expand on these existing mandates by ensuring that all women have access to reliable and
affordable contraceptive methods.
The Refusal Provision Violates the Affordable Care Act
The ACA demands that women’s preventive health services be covered without cost-sharing. As
you are well aware, the Women’s Health Amendment to the ACA, section 2713(a)(4), was
overwhelmingly approved by Congress to remedy past discrimination against women in the
provision of health care and to ensure that all women’s health care needs were met under the
act.5 The Congressional record makes clear that contraceptive coverage was contemplated as part
of this important provision.6 Neither the Women’s Health Amendment nor any other portion of
the ACA contemplates allowing certain employers or individuals to discriminate against women
in the provision of contraceptive services. Rather section 2713 of the ACA applies to all group
health plans and plan issuers and states: “A group health plan and a health insurance issuer
offering group or individual health insurance coverage shall, at a minimum provide coverage for
and shall not impose any cost sharing requirements for … with respect to women, such
additional preventive care and screenings not described in paragraph (1) as provided for in
3
Committee on Preventive Services for Women Board on Population Health and Public Health Practice; Clinical
Preventive Services for Women: Closing the Gaps; Institute of Medicine 90-91 (July 2011) (internal citations
omitted).
4
See, State Policies In Brief: Insurance Coverage of Contraceptives, Guttmacher Institute (Sept. 1, 2011), at
http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf
5
See, David Herszenhorn and Robert Pear, Senate Passes Women’s Health Amendment, Prescriptions: The Business
of Health Care, New York Times blogs, at http://prescriptions.blogs.nytimes.com/2009/12/03/senate-passeswomens-health-amendment/
6
Sen. A. Franken, Congressional Record, Dec. 3, 2009, p. S.12271; Sen. B. Boxer, Congressional Record, Dec. 1,
2009, p. S.12025; Sen. D. Feinstein, Congressional Record, Dec. 2, 2009, p. S. 12114; Sen. B. Nelson,
Congressional Record, Dec. 3, 2009, p. S.12277.
4
comprehensive guidelines supported by the Health Resources and Services Administration for
purposes of this paragraph.”7 Nothing in this provision allows HHS to treat certain religious
employers differently than all other employers.
This is even more notable because Congress has included refusal provisions in many laws. In
fact, another section of the ACA includes a refusal clause. Section 1303 of the ACA establishes
“Special Rules” for coverage of abortion in health plans. Among other provisions, this section
specifically allows individuals and entities to refuse to provide abortion care.8 It also
incorporates other federal laws that allow individuals and entities to refuse to provide some care
to which they object.9 None of the refusal provisions in these federal laws extend to provision or
coverage of contraception, however.10 Moreover, the statute explicitly states that “Nothing in
section 1303(c) of the Affordable Care Act shall alter the rights and obligations of employees
and employers under Title VII of the Civil Rights Act of 1964.”11 As explained in greater detail
below, allowing certain employers to fail to provide contraceptive coverage to their employees
violates Title VII.
Had Congress intended to expand this refusal clause to extend to contraception or include refusal
clauses in other portions of the law, they would have done so. It is a well-known rule of statutory
interpretation that if it is clear that Congress knows how to do something, and it does not do it, it
cannot be read into the statute.12 The Departments are not permitted to amend the ACA by
regulation to impose requirements outside of Congress’ intent. There is nothing in the Affordable
Care Act that would allow for the inclusion of a refusal clause in this context, and therefore, such
a clause cannot be implemented through regulation.
In addition to being contrary to the intent of Congress in passing the WHA as explained above,
the interim final rule also violates other provisions of the ACA. One of the important goals of the
7
Patient Protection and Affordable Care Act, Pub L. No. 111-148, § 2713, codified at 42 U.S.C. 300gg–13 (2010)
(emphasis added).
8
Patient Protection and Affordable Care Act, Pub L. No. 111-148, § 1303(a)(3), codified at 42 U.S.C. § 18023
(2010).
9
§1303(b)(2).
10
See, Church Amendment, an amendment to the Health Programs Extension Act of 1973 §401, 42 U.S.C. §300a-7;
Coats Amendment, an amendment to the Public Health Services Act of 1996 §245, 42 U.S.C. §238n; Weldon
Amendment, Consolidated Appropriations Act of 2010 §508.
11
§1303(b)(3).
12
Franklin Nat’l Bank v. New York, 347 U.S. 373, 378 (1954) (“no indication that Congress intended to make this
phase of national banking subject to local restrictions, as it has done by express language in several other
instances”); Central Bank of Denver v. First Interstate Bank, 511 U.S. 164, 176-77 (1994) (“Congress knew how to
impose aiding and abetting liability when it chose to do so”); Meghrig v. KFC Western, Inc., 516 U.S. 479, 485
(1996) (“Congress . . . demonstrated in CERCLA that it knew how to provide for the recovery of cleanup costs, and
. . . the language used to define the remedies under RCRA does not provide that remedy”); FCC v. NextWave
Personal Communications, Inc., 537 U.S. 293, 302 (2003) (when Congress has intended to create exceptions to
bankruptcy law requirements, “it has done so clearly and expressly”); Dole Food Co. v. Patrickson, 538 U.S. 468,
476 (2003) (Congress knows how to refer to an “owner” “in other than the formal sense,” and did not do so in the
Foreign Sovereign Immunities Act’s definition of foreign state “instrumentality”); Whitfield v. United States, 543
U.S. 209, 216 (2005) (Congress has imposed an explicit overt act requirement in 22 conspiracy statutes, yet has not
done so in the provision governing conspiracy to commit money laundering).
5
ACA was to eliminate discrimination against women that had so long interfered with their ability
to get all of their health care needs met. Several important provisions were included in the law to
ensure that these goals would be achieved. One was the Women’s Health Amendment, which
these regulations seek to implement. Another was section 1557, which prohibits discrimination
in health care on the basis of – among other things – sex.13 Since the burdens of pregnancy fall
entirely on women and most contraceptive methods are available only to women, failure to
provide equal access to contraception constitutes discrimination on the basis of sex. Furthermore,
access to contraception is vital to gender equality as it is only when women can control their
fertility that they are able to participate equally in society.
The refusal clause also violates Section 1554 of the ACA which states that the “Secretary of
Health and Human Services shall not promulgate any regulation that … (1) creates any
unreasonable barriers to the ability of individuals to obtain appropriate medical care; (2) impedes
timely access to health care services … or (6) limits the availability of health care treatment for
the full duration of a patient’s medical needs ”14 The result of the refusal clause in the interim
final rule is that some women seeking legal reproductive healthcare services will be subjected to
unnecessary and sometimes prohibitive financial obstacles in accessing the services. The refusal
clause in the interim final rule imposes a burden on certain women that all other women are not
forced to bear. It creates an unreasonable barrier for women seeking appropriate medical care by
requiring those who work for certain religious employers to bear the substantial costs of
contraceptive counseling and services.
For these reasons, the refusal clause in the interim final rule violates important provisions in the
ACA designed to ensure access to medical care. This exemption compounds the discrimination
against women who will be excluded from comprehensive health coverage under the Act.
The Refusal Provision Violates Federal Non-Discrimination Law
Section 1557, detailed above, makes clear that it does nothing to modify employers’ obligation to
comply with other civil rights laws.15 One of those laws is Title VII, which provides important
13
“Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the
ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving
Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity
that is administered by an Executive Agency or any entity established under this title (or amendments).” Patient
Protection and Affordable Care Act, Pub L. No. 111-148, § 1557(a), codified at 42 U.S.C. § 18116 (2010).
14
Patient Protection and Affordable Care Act, Pub L. No. 111-148, § 1554, codified at 42 U.S.C. § 18114 (2010).
15
“Nothing in this title (or an amendment made by this title) shall be construed to invalidate or limit the rights,
remedies, procedures, or legal standards available to individuals aggrieved under title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d et seq.), title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794), or the Age Discrimination Act of 1975 (42 U.S.C. 611 et seq.), or to supersede State laws that provide
additional protections against discrimination on any basis described in subsection (a).” Patient Protection and
Affordable Care Act, Pub L. No. 111-148, § 1557(b), codified at 42 U.S.C. § 18116 (2010).
6
authority to show that HHS does not have the power to impose a refusal clause under the WHA.
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act
(PDA) prohibits sex discrimination in employment.16 The PDA specifically prohibits
discrimination against women "affected by pregnancy, childbirth, or related medical conditions"
in all aspects of employment, including the receipt of fringe benefits.17 The Supreme Court has
long held that it is discrimination under this section to treat women differently, not just because
they are pregnant, but because of their potential to become pregnant.18 Just like under section
1557, it is a violation of Title VII to allow some employers to refuse to provide contraceptive
coverage for their female employees. The specific issue of failing to provide contraceptive
coverage along with other related health services was addressed by the Equal Employment
Opportunity Commission in 2000.
Two registered nurses filed complaints with the EEOC against their employers for their
employers’ refusal to cover prescription contraception while covering a wide array of other
prescription drugs and preventative health care services. The EEOC panel noted that pregnancy
discrimination included discrimination based on the potential to become pregnant and found that
the PDA clearly prohibited discrimination in benefits, including prescription contraception. They
based their decision on the language of the PDA, Supreme Court cases interpreting it, and
Congress’ legislative intent. The EEOC rejected the employers’ arguments that they could
exclude contraception for strictly financial reasons or because it was not used to treat “something
abnormal about [the employee’s] mental or physical health.” They found that the employers had
treated contraception differently than other preventative services and had, thereby,
“discriminated on the basis of pregnancy.” Because prescription birth control is only available
for women, the EEOC also rejected the employers’ argument that they did not explicitly
distinguish between men and women. The EEOC ordered the employers to cover the expenses of
prescription contraceptives, including “the full range of prescription contraceptive choices.”19
The few courts that have addressed this issue have reached varied results, with a number of
federal courts agreeing that failing to provide contraceptive coverage violates Title VII.20 HHS
cannot allow some employers to violate Title VII.
16
42 U.S.C. § 2000e et seq.
42 U.S.C. § 2000e(k).
18
See Int'l Union, UAW v. Johnson Controls, 499 U.S. 187 (1991).
19
Equal Employment Opportunity Commission (EEOC), Decision on Coverage of Contraception (Dec. 14,
2000), at http://www.eeoc.gov/policy/docs/decision-contraception.html (last visited Sept. 21, 2011).
20
Compare, Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001) (holding that failure to provide
contraceptive coverage resulted in less comprehensive coverage for women than for men and violated Title VII);
Cooley v. DaimlerChrysler Corp., 281 F.Supp.2d 979 (E.D. Mo. 2003); Mauldin v. Wal-Mart, 89 Fair Empl. Prac.
Cas. (BNA) 1600 (N.D. Ga. 2002) (certifying plaintiff class of contraceptive-using women and citing Erickson.
Wal-Mart ultimately settled the case by agreeing to provide contraceptive coverage); with, In re Union Pacific
Railroad Employment Practices Litigation, 479 F.3d 936, 943 (8th Cir. 2007) (holding that the potential to become
pregnant is not “related to pregnancy” under the PDA and that contraceptives did not have to be compared with
other preventive health services, an argument in direct contrast to the WHA and IOM Committee findings); Stocking
v. AT&T, No. 03-0421, 2007 U.S. Dist. LEXIS 78188 (W.D. Mo. 2007) (controlled by Union Pacific); Cummins v.
Illinois, No. 02-4201, 2005 U.S. Dist. LEXIS 42634 (S.D. Ill 2005).
17
7
The Refusal Provision Violates the Administrative Procedure Act
All regulations issued by the Department of Health and Human Services and other executive
agencies must comply with the requirements of the Administrative Procedure Act (APA).
“Congress passed the Administrative Procedure Act (APA) to ensure that agencies follow
constraints even as they exercise their powers. One of these constraints is the duty of agencies to
find and formulate policies that can be justified by neutral principles and a reasoned
explanation.”21 The APA dictates the requirements that agencies must follow in issuing
regulations. Federal courts have the authority to strike down agency action that is not in keeping
with the underlying law or otherwise not in accordance with law.22 An Administrative Agency
may not interpret a statute in a way that is contrary to the statutory text or congressional intent.23
For the reasons detailed above, the authority cited in the interim final rule does not support the
inclusion of a refusal clause as part of the WHA.
Conclusion
For all of the aforementioned reasons, we respectfully strongly advise that the religious
exemption be eliminated from the interim final rules implementing the Coverage of Preventive
Health Services provisions of the Patient Protection and Affordable Care Act to ensure that all
women have access to affordable contraceptive services.
Thank you in advance for your consideration of our requests.
Sincerely,
Debra Ness
President
21
FCC v. Fox TV Stations, Inc., 129 S. Ct. 1800, 1823 (2009) (Kennedy, J. concurring).
5. U.S.C. 706; see also, Bowen v. American Hospital Asso., 476 U.S. 610 (U.S. 1986).
23
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
22