Title 45: Public Welfare [Full
The Obama administration has decided that, as a matter of public
policy, individual women should not have to pay for
contraceptive services," which include surgical sterilization,
contraceptives, and embryocides.
for this policy are mainly economic and socio-political.
Since sterilization and birth control have to be paid for by
someone, the administration intends to force others to pay for them
through insurance plans, even if they object to doing so for reasons
of conscience or religion.
This regulation was written by the U.S. Department of Health and
Human Services for this purpose. It is authorized by
the United States Code made by Section 1001 of the
Protection and Affordable Care Act, the American health care
reform law passed in 2010.
requires all group health care plans (the kind of plan usually
offered by businesses or oganizations) to offer coverage and
fully pay for "preventive services"identified in Section
147.130 (reproduced below, in part). Businesses with 50 or
more employees must offer such coverage by 2014, or face penalties.1
Health insurance issuers (like insurance companies) must also make
available group and individual plans that fully pay for "preventive
Most of the services are not
identified in the regulation. They are itemized in separate
recommendations and guidelines.
Contrary to an administration statement
on 10 February, 2012, the
regulation has not
been changed to accommodate objecting religious believers. The
wording and legal effect of the regulation remains exactly as it was
when it was
announced on 20 January, 2012.3
What follows is the part of the regulation that is related to the
demand by the Department of Health and Human Services that employers
must pay for insurance coverage for surgical sterilization,
contraceptives and embryocides.2
Key terms are highlighted, links have been added for the
convenience of readers, and annotations are provided in text boxes to
PART 147—HEALTH INSURANCE REFORM REQUIREMENTS FOR THE GROUP AND INDIVIDUAL
HEALTH INSURANCE MARKETS
§ 147.130 Coverage of preventive health services.
(a) Services —(1) In general.
Beginning at the time
described in paragraph (b) of this section, a group health plan, or a health
insurance issuer offering group or individual health insurance coverage,
must provide coverage for all
of the following items and services, and
not impose any cost-sharing requirements (such as a copayment, coinsurance,
or deductible) with respect to those items or services:
(i) essentially repeats
§300gg–13(a)(1) in the statute.
(ii) is drawn from
§300gg–13(a)(2) in the statute,
and explains how recommendations will be identified.
(ii) Immunizations for routine use in children, adolescents, and adults
that have in effect a recommendation from the
Advisory Committee on Immunization Practices of
the Centers for Disease Control and Prevention
with respect to the individual involved (for this purpose, a recommendation
from the Advisory Committee on Immunization Practices of the Centers for
Disease Control and Prevention is considered in effect after it has been
adopted by the Director of the Centers for Disease Control and Prevention,
and a recommendation is considered to be for routine use if it is listed on
the Immunization Schedules of the Centers for Disease Control and
(iii) With respect to infants, children, and adolescents,
evidence-informed preventive care and screenings provided for in
comprehensive guidelines supported by the Health Resources and Services
Subsection (iv) refers to
legal guidelines that set out required "preventive care and screenings".
The meaning and effect of the regulation depends upon those guidelines.
(A) Note the word "may."
There is no requirement to provide an exemption, and any exemption provided
can be revised or revoked by the Department. "Contraceptive services"
are defined in legal guidelines, not in this regulation.
(A) In developing the
binding health plan coverage guidelines
in this paragraph (a)(1)(iv), the Health Resources and Services
Administration shall be informed by evidence and may
from such guidelines with respect to group health plans established or
maintained by religious employers and health insurance coverage provided in
connection with group health plans established or maintained by religious
employers with respect to any requirement to cover contraceptive services
under such guidelines.
(B) The definition of
"religious employer" excludes individual religious believers [See B(4)].
(B) For purposes of this subsection, a “religious employer” is an
organization that meets all
of the following criteria:
(1) "The purpose"
seems to imply "sole purpose." Many organizations have more than
one purpose, or have been established to act upon rather than inculcate
religious values. Under the regulation, it would seem they are not
) The inculcation of religious values is
purpose of the
( 2 ) The organization primarily employs persons who share the
religious tenets of the organization.
B(1), B(2) and B(3) effectively
deny a religious exemption to most of the social, educational and charitable
organizations operated by religious believers.
) The organization serves primarily persons who share the
religious tenets of the organization.
( 4 ) The organization is a nonprofit organization as described in
section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal
Revenue Code of 1986, as amended.
[75 FR 41759, July 19, 2010; 76 FR 46626, Aug. 3, 2011]
of the regulation.
Provided by the Protection of Conscience Project
"The New Health
Care Reform Law: How Will it Affect Non-Profit Employers?" The
Arc, National Policy Matters, Issue #9, July 15, 2012.
The term "contraceptives," as it is used in the guidelines (and, thus,
the regulation) includes sterilization and drugs and devices that may
cause the death of a human embryo before implantation ("embryocide"). For an explanation of this
terminology, see Clearing
3. "These regulations finalize, without change,
interim final regulations. . . .the amendment to the interim final rule
with comment period amending 45
CFR 147.130(a)(1)(iv) which was published in the Federal Register at 76
FR 46621-46626 on August 3, 2011, is adopted as a final rule
without change." "Group
Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services under Patient Protection and Affordable Care Act,"
p. 1, 20. Scheduled for publication in the Federal Register
on 15 February, 2012. (Emphasis added)