Heads Up on Rollback of Contraception Mandate

The New York Times is reporting that there exists a draft of a rule to undo the “contraception mandate.” It is not yet public, but we will let you know when it is.

At the moment, it is an “interim final rule,” meaning that it could become effective immediately on publication, but could also be altered in response to public comments (WSFT will submit official comments).

Pro-abortion and pro-contraception interest groups are preparing to challenge the rule.  I cannot imagine a legal theory that could “require” the federal government to require religious groups to provide free contraception through their health insurance policies…but that is never a guarantee that some ideological judge won’t concoct one.

Planned Parenthood and others have said that they will argue that the new rule is “arbitrary and capricious,” or “impedes timely access to health care services,” or creates “unreasonable barriers to the ability of individuals to obtain appropriate medical care.”

Here are the reasons that these arguments are wrong, in case you need them.

  1. A rule exempting religious institutions from providing contraception and early abortifacients cannot be “arbitrary and capricious,” given that the United States Supreme Court has said in the Hobby Lobby case, and indicated strongly in the Little Sisters case, that religion is “substantially burdened” by being forced to include such drugs and devices in its health care plans, and that the government has “less restrictive means,” to deliver these without hijacking religious insurance plans.
  2. It is ridiculous to argue that contraception and abortifacients are necessary “preventive health care services”—as the Obama administration insisted—when the preventive care task force on which the government relies for expert advice has never listed contraception as  recommended “preventive care” even to today—more than 5 years after the mandate was issued.
  3. It is ridiculous to argue that drugs and devices with so many side and health effects are “appropriate medical care.”
  4. Five years post-mandate, even the rabidly pro-contraception-and-abortion Guttmacher Institute has acknowledged that sexually-active women’s usage of contraception has not changed. How could the mandate matter then—even according to supporters’ definitions of “health care” ?

I will continue to keep you updated and prepared with arguments as this unfolds.

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