Final HHS Rule: Cui Bono?

Surprise, surprise: The final HHS Rule requiring employers to include contraceptive and sterilization in its insurance policies for women, announced Friday afternoon, is exactly the same as the proposed rule.

You may remember that in April, the day before the deadline for public comments on the Rule, HHS Secretary Kathleen Sebelius told reporters at a Harvard School of Public Health forum that the coverage would go into effect before fall.

“As of Aug. 1, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package,” she said then. And true to her word, that’s exactly what the Rule says. [Editor’s note: that date has now been extended to January 2014]

The only employers exempt from the requirement are “houses of worship” and “integrated auxiliary” organizations. Who can be considered a house of worship or an integrated auxiliary will be determined by IRS status. The only employers sort-of exempt from the requirement are some, but not all, non-profits associated with religions. They are only sort-of exempt because, through accounting gyrations the US government is pretending are both possible and legal, their female employees and employee’s female dependents will be given the coverage anyway, and all concerned can pretend it’s not an employee benefit.

Religious non-profits that don’t qualify, non-religious non-profits, and all for-profit businesses must provide the coverage. This absurd situation famously results in conservative Christian colleges having to pay for birth control for their unmarried teen students, and Bible publishers having to pay for “morning after pills” for their press operators.

How this all happened is convoluted, but not difficult to explain. First of all, it wasn’t in the original healthcare law at all. An amendment to the law said that all insurance policies must cover preventative care for children (things like vaccinations and well baby visits) with no co-pay for the insured adults.

An amendment added to that amendment required that “preventative care” for women also be covered without a co-pay. Traditionally, the term meant tests such as mammograms and pap smears. The Department of Health and Human Services got a panel of “experts” — the Institute of Medicine (IOM) — to study what else might be considered “preventative services… necessary for women’s health and well-being.” The IOM recommended that all FDA-approved contraceptive drugs and procedures, all FDA-approved sterilization procedures, and massive doses of birth control pills referred to as “morning after” and “week after” pills, be considered preventative care.

drug trapVoila: Elective procedures and drugs to temporarily or permanently sterilize women were suddenly to be provided for free to all American women by their employers, because they were suddenly recognized as essential.

Government officials were then shocked–shocked!–to find that anyone objected to these services being dispensed on their dime. Dozens of suits were filed on behalf of non-profits and for-profits whose outraged owners and managers didn’t see any reason that they should suddenly be responsible for buying their employees things that they had religious and moral objectives to. The Obama administration fought back with outrage of its own, simply shocked that anyone would attempt to “block access” to what had become “essential drugs and services for women” overnight.

And just before a presidential election, too.

The “Republican war on women” was discovered by Democrat campaign strategists, who declared that only Republicans and crazy religious zealots opposed the coverage, and only because they hated women. But the Democrats —  who passed the healthcare law and then realized that women need to be given any kind of contraception or sterilization they want, for as long as they want it, for free —just loved women.

Faced with First Amendment suits that did not evaporate at the words “war on women,” the President and the HHS retrenched, promising to “accommodate” religious — but only religious — entities.

In February, they came out with the proposed Rule, which is essentially the same Final Rule announced during Friday afternoon’s news dump. “Houses of worship” would not have to provide coverage. But women who worked anywhere else would get their free sterilizations.

How complicated is this to arrange? In addition to the shell game mentioned above — the one in which an employer arranges for health insurance without birth control, sterilization, or “Plan B” coverage, and then the insurance company pays for the services and drugs in question while magically incurring no cost for it — there’s an even stranger wrinkle.

Many religious non-profits self-insure. Self-insurance is an arrangement in which the entity (commonly, a church or diocese — but also many non-profit and for-profit companies) sets aside money to pay directly for employees’ medical care. There is no insurance company involved. Instead, a third-party administrator acts as the go-between.

The HHS Rule requires self-insurance administrators to arrange for insurance companies to provide policies for the covered services to all female employees, and female dependents of employees, of member organizations. For free.

Yes, they’re suing.

drug trap 2So how does the government justify giving away elective drugs and services when people still have to pay co-pays for drugs and services that actually prevent disease, cure illnesses, and even save their lives?

It doesn’t. The Center for Consumer Information & Insurance Oversight fact page on the Rule, for instance, simply states that ”there are tremendous health benefits for women that come from using contraception” but gives no reason that employers should have to pay for them. Aside from the IOM’s bald assertion, the government has never made any serious effort to claim that the drugs and services are “preventative care,” a term that usually means tests, medicines, or procedures that detect or stave off disease, not something that prevents what a healthy body is supposed to do.

The text of the Final Rule actually claims that women who do not use contraception are at risk for becoming pregnant without realizing it, waiting too long to see a doctor, and drinking and smoking while unaware of their pregnancies. What the regulation is supposed to prevent, then, is health problems among heavy-drinking, chain-smoking women who have sex without using contraception and don’t realize they might get pregnant — women that will presumably become models of responsibility once birth control is free to everyone.

In its original proposal that health insurance companies issue policies for free, the HHS claimed that doing so would be “cost-neutral” for insurance companies because they would not have to pay for pregnancy and delivery — as if American women who have no contraception insurance but want contraception haven’t just gone ahead and bought it on their own, thus costing insurance companies nothing.

And now, the text of the final Rule makes the bizarre claim that free sterilization for all will help the beleaguered American economy:

Covering contraceptives also yields significant cost-savings. A 2000 study estimated that it would cost 15 to 17 percent more not to provide coverage in employee health plans than to provide such coverage, after accounting for both the direct medical costs of pregnancy and the indirect costs, such as employee absence.

And so the strange spectacle of the United States government attempting to sterilize as many women as possible while ignoring the religious freedom rights of all Americans goes on. Dozens of law suits are crawling through American courts, dozens of US officials are pretending there is no opposition to their plans, and no one is asking the obvious question: Why do this? Whose interest is it in to make sure that American women are sterile for most, if not all, of their lives? What end is this a strategy to reach?

Before the amendment about women was made to the amendment about children on the 2000-page Affordable Care Act, most American women were using, or had used, contraception. It is available in some form on every street corner and at every price point, from a tubal ligation performed at a hospital to a pack of condoms from the local drug store. Clinics dispense pills and condoms for reduced costs, and even for free — and in the case of the administration’s beloved Planned Parenthood, we already pay for it through our taxes. If “family planning” were really a goal of the government, sending every household in the country a pack of condoms a couple of times a year would be far cheaper.

But if that’s not the purpose of the law, then what is? Why require devout religious people to pay for drugs and services that no one in the country had a problem getting? Cui bono — who benefits?

That’s the real question in this long, strange trip with the HHS, and the time has long since past to start asking it.


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Gail D. Finke is an author and mother living in Cincinnati, where she writes for The Catholic Beat at Sacred Heart Radio.

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