Obamacare's Contraception Mandate And Its Implications For Regulation Of Medical Care


President Barack Obama is introduced by Sandra Fluke during an election campaign rally at the Auraria Event Center in Denver, Colorado, August 8, 2012.

Article Highlights

  • The women’s benefits are just one part of the mandates that Obamacare imposes on private insurance.

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  • Every plan, regardless of how & where it’s purchased, is going to be subject to rules established by “independent” gov't groups.

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  • The law puts a whole new swath of peoples’ personal needs into political play.

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The mandate that health plans must fully cover any form of contraception is of a piece with the way that Obamacare centralizes judgment about treatments, and tries to establish a universal convention when it comes to the practice of medicine.

Obamacare pushes these decisions into the hands of unaccountable boards, all but ensuring that these considerations will be the stuff of politics indefinitely.

The scheme that created the contraception mandate gets to the very heart of how the law puts Washington in charge of establishing medical standards by erecting a series of largely unaccountable committees to set rules on what medical care we should and shouldn’t have access to. The regulations they establish don’t just apply to Obamacare plans, but any private health insurance that consumers buy.

The benefits they require will be important to some people. The problem is with the way that Washington tries to force consumers to submit to its judgment about what should or shouldn’t be included in your coverage. The mandate that health plans must cover contraception and surgical sterilization falls under this framework.

To decide which benefits Washington will mandate (and those that don’t make the cut) the federal scheme had to anoint some new authority. So out of expediency, Obamacare turns to a group of existing committees and agencies to play this role, even though these government entities were never meant to wield so much power.

When it came to women’s preventive health care, this task fell mostly to the Health Resources and Services Administration. HRSA, in turn, went to the Institute of Medicine (IOM) to develop “guidelines” about what medical services should be included in a “comprehensive set of preventive services” and be covered in full.

It’s a largely zero sum effort. For every benefit that’s promised without any cost sharing, some other medical service must be excluded.

The women’s benefits are just one part of the mandates that Obamacare imposes on private insurance. The bulk of the preventive services that must now be covered are going to be decided on by the United States Preventive Services Task Force (USPSTF).  It’s another government committee that the Obama White House turned to as a way to mediate over which medical benefits the government would mandate.

Like the process that created the mandates on women’s health benefits, the USPSTF was never fashioned to wield this kind of authority. The task force is a part-time, and largely insular board of volunteer advisers. It existed for years as a largely independent advisory body that issued ivory tower edicts on its perceptions of the relative merit of different preventative medical treatments. It rated things such as mammograms and prostate screening with letter grades of “A” through “D” depending on its view of the strength of the evidence was that supported use of each particular test or treatment. Its recommendations were advisory but not binding.

I wrote about the USPSTF before. The board works slowly and is often late to incorporate new science into its recommendations. It’s also the only federal health agency to have the explicit legal authority to consider cost as one criterion in recommending whether patients should use a medical test or treatment.

Its problems are compounded by the fact that it’s deliberately exempted from the rules that govern the conduct of government advisory boards and regulatory agencies. For example, it has no obligation to hold its meetings in public, announce decisions in draft form or even consider public comments. Consumers have no way to directly appeal its decisions. Health providers or medical product developers who are affected by its decisions can’t sue the Task Force for recourse.

That gets to the problem with the way that this entire scheme operates. Public input is welcomed, to a point. Ultimately, those in charge shape the decisions. The resulting work often smacks of advocacy-based recommendations. [http://www.aul.org/the-con-hrsa-guidelines-and-the-institute-of-medicine/] The little public input that was allowed into the process behind the women’s health mandates included a who’s who of left leaning advocacy groups, including Planned Parenthood, the National Women’s Law Center, and the Guttmacher Institute.

It shouldn’t surprise anyone that a Democratic administration would invite these groups into the process. These are Mr. Obama’s political allies on these issues. What should be surprising is how easily political power influences the outcome — and the broad scope of this new policy regime.

Every health plan, regardless of how and where it’s purchased, is going to be subject to the rules established by these “independent” government groups.

That’s the problem with establishing these edicts in Washington. They’re inevitably shaped to reflect the current political style. That may be suitable now to those in charge of these decisions. But fashion changes. Once these considerations are firmly embedded in the political process, they will be in play regardless of who’s in charge of them. People will now look to Washington for help securing these things.

This is how Obamacare establishes a new compact between the government and the governed. The law puts a whole new swath of peoples’ personal needs into political play, by federal agencies that are far removed from most people’s influence. This is certain to breed a long line of political fights well into the future.

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