Contraceptive Mandate

July 8, 2020

Some thoughts about today’s Supreme Court decision on contraceptive healthcare:

As a policy matter, I understand that many people are disappointed by today’s outcome, and I know that many other people are pleased. But regardless of how one feels about the outcome, I think this case can teach us something important about how our Congress functions. Spoiler alert: not so great.

Many people have described today’s case as involving “the Affordable Care Act’s contraceptive mandate.” But here’s the thing: When Congress passed the Affordable Care Act, the law did not actually say that insurance coverage would have to include free contraception. That’s right: the ACA itself did not include a “contraceptive mandate.”

What the ACA required was “preventive care and screenings,” but it never actually defined what those terms should mean. Instead, Congress punted that crucial definitional question (which is actually quite difficult and controversial) to an administrative agency. In other words, Congress left it up to somebody else to define the scope of “preventive care and screenings.”

So what happened? While President Obama was in office, the administrative agency defined “preventive care and screenings” to include contraceptive care. That agency interpretation is what became known as the “contraceptive mandate.”

But then there was an election, and a new President took office, and (predictably) the leadership of a whole slew of administrative agencies changed hands — including the leadership of the agency whose job it was to define “preventive care and screening.” The agency changed its rules — and it *could* change the rules because Congress had given such a broad delegation of authority.

To me, therein lies one of the major lessons of today’s decision.

Regardless of one’s party affiliation, we should all be concerned when Congress passes a major law but leaves very important policy questions unanswered in the text of the law itself. In this case, Congress's failure to definitively address that policy question will now affect the lives and healthcare interests of millions of women across America.

In a representative democracy like ours, we elect people to legislate on our behalf, and we can vote them out if we don’t like the job they’ve been doing (assuming our electoral system is functioning properly). But when Congress passes a major law that punts some of the most crucial questions over to an administrative agency (which can often change the rules when a new President is elected), is it really doing its job to write authoritative legislation?

Again, I understand that many are upset about today’s Court decision, and I’m not trying deny the validity of that reaction. I’m simply trying to suggest that, to a large extent, Congress is to blame for today’s outcome.