Contraceptives remain most controversial health care provision



Three years after Congress approved President Obama's Affordable Care Act (ACA), contraceptive care remains its most controversial provision, drawing not only more comments than any other regulatory proposal on any subject government-wide, according to an analysis of federal regulations on Sunlight's Docket Wrench.

More than 147,000 people and organizations have made their voices heard over the debate, most of them opposing the provision that requires that federal agencies have interpreted to mean that women have access to preventive services–including contraception–at no cost. The Catholic Church has led the charge, urging parishioners to write with messages such as "Pregnancy is not a disease, and drugs and surgeries to prevent it are not basic health care that the government should require all Americans to purchase."

The Church's success in rallying its grassroots to not only oppose, but to take action against, the provision demonstrate its power among its faithful. This is despite recent New York Times/CBS News polling showing that the numbers of Catholics that say that they are against the contraceptive mandate is declining, from two-thirds a year ago to half this month. The regulations and comments can be viewed here and here. The same polling showed that more Catholics see the issue as being about "women's health and their rights" than "religious freedom," showing that Obama's framing of the issue has resonated even within the Catholic community.

Women's groups and liberal organizations have also organized over the issue, which is also reflected in comments seen in the dockets. For example, the National Organization for Women sent out this alert in 2011, giving activists suggested language such as "Birth control is basic health care for all women, and the federal government should not permit a solitary religious viewpoint to override good public health policy."

Obama has been working  to reach a compromise that would pass muster with the Catholic community and other religious groups that protest the rule, without success. In February, Catholic bishops said they opposed his most recent attempt, which would exempt churches, other religious organizatoins and some religiously affiliated hospitals, universities and social service agencies from paying directly for the contraceptive coverage. Instead, health insurance companies would pay for the coverage. So far federal courts have differed over the legality of the contraceptive provision, and observers expect that the issue will come to the Supreme Court.

To give an idea of just how motivated foes and champions of the contraceptive provision are, consider that second-most remarked upon regulation got all of 4,600 comments. That particular rule deals with the law's mandate that health insurance companies must offer coverage to people with pre-existing conditions. But dig deeper and this one, too, appears to be about women's health concerns, namely, the Administration's decision that the provision does not cover abortion services. More than 4,000 comments to the preexisting condition regulation appear to be inspired by this alert sent out by the National Women's Law Center, with suggested language including "It will prevent women with serious pre-existing medical conditions from getting the abortion coverage they need to protect their health, even when they pay for such coverage themselves." One of the comment writers was Katha Pollit, a longtime contributor to the left-leaning Nation Magazine.

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It is the rule rather than the exception that most federal regulations get little attention from the general puiblic. Instead, dockets tend to be dominated by industry groups representing companies affected by the regulations. In an analysis of regulations receiving comments in 2012, Sunlight found that 89 percent of the regulations that drew at least one comment received 100 or fewer.

See below for spreadsheet of ACA insurance related regulations and links on Docket Wrench. NOTE: This is not a comprehensive list of all health regulations related to the ACA. It is based on the list provided by the U.S. Department of Health and Human Services here. The Internal Revenue Service and the Department of Labor, also charged with implementing the law, have also issued regulations for comment.

Andrew Pendleton contributed to this story.

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