Adventures in Ad Law

The whole idea of “administrative law” — regulations with the force of law promulgated by executive agencies pursuant to powers delegated by Congress — squares uneasily at best with the Constitution and its scheme of separated powers. Obamacare presents us with a case study that amounts to a reductio ad absurdum. The agencies promulgating Obamacare regulations will produce a code that rivals the United States Code in length and complexity. As we can see with the controversy over the “preventive services” regulation for women, these regulations will seriously impinge on constitutional liberties — as the Obamacare law itself does — only more so. God help us.

The “preventive services” regulation that we have been following over the past few weeks followed the course prescribed for notice-and-comment rule making under the Administrative Procedure Act. It is a faux legislative process. Despite the sudden controversy aroused by the regulation, it’s been a long time comin’.

Once Congress passes a law delegating its lawmaking powers, the agency publishes a proposed regulation and asks for public comments. The “preventive services” regulation appears to go back to a 2010 announcement that led to the promulgation of an interim final rule in August 2011. Here is HHS’s description of the background to the promulgation of the interim final rule:

The Affordable Care Act – the health insurance reform legislation passed by Congress and signed into law by President Obama on March 23, 2010 – helps make prevention affordable and accessible for all Americans by requiring health plans to cover recommended preventive services without cost sharing.

Under the Affordable Care Act, women’s preventive health care services – such as mammograms, screenings for cervical cancer, and other services – are already covered with no cost sharing for new health plans. The Affordable Care Act also made recommended preventive services free for people on Medicare. However, the law recognizes and HHS understands the need to take into account the unique health needs of women throughout their lifespan.

On August 1, 2011, the Department of Health and Human Services (HHS) adopted additional Guidelines for Women’s Preventive Services – including well-woman visits, support for breastfeeding equipment, contraception, and domestic violence screening – that will be covered without cost sharing in new health plans starting in August 2012. The guidelines were recommended by the independent Institute of Medicine (IOM) and based on scientific evidence.

It’s a little bloodless, a little propagandistic, a little deceptive, a little chilling. Having taken public comments into account following the announcement of its interim final rule, HHS returned in the same spirit on January 20, 2012, with the announcement of its final rule, like Moses coming down from the mountain with the tablets in hand:

Today the department is announcing that the final rule on preventive health services will ensure that women with health insurance coverage will have access to the full range of the Institute of Medicine’s recommended preventive services, including all FDA -approved forms of contraception. Women will not have to forego these services because of expensive co-pays or deductibles, or because an insurance plan doesn’t include contraceptive services. This rule is consistent with the laws in a majority of states which already require contraception coverage in health plans, and includes the exemption in the interim final rule allowing certain religious organizations not to provide contraception coverage. Beginning August 1, 2012, most new and renewed health plans will be required to cover these services without cost sharing for women across the country.

After evaluating comments, we have decided to add an additional element [sic] to the final rule. Nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law. Employers wishing to take advantage of the additional year must certify that they qualify for the delayed implementation. This additional year will allow these organizations more time and flexibility to adapt to this new rule. We intend to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support. We will continue to work closely with religious groups during this transitional period to discuss their concerns.

Scientists have abundant evidence that birth control has significant health benefits for women and their families, is documented to significantly reduce health costs, and is the most commonly taken drug in America by young and middle-aged women. This rule will provide women with greater access to contraception by requiring coverage and by prohibiting cost sharing.

This decision was made after very careful consideration, including the important concerns some have raised about religious liberty. I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services. The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health care providers.

Which brings us to the controversy of the past few weeks, with the uprising of the Catholic bishops and the related protests to HHS regulation. On Friday President Obama announced that he had come to bring peace:

The President…announce[d] that his Administration will propose and finalize a new regulation during this transition year to address the religious objections of the non-exempted non-profit religious organizations. The new regulation will require insurance companies to cover contraception if the religious organization chooses not to. Under the policy:

o Religious organizations will not have to provide contraceptive coverage or refer their employees to organizations that provide contraception.

o Religious organizations will not be required to subsidize the cost of contraception.

o Contraception coverage will be offered to women by their employers’ insurance companies directly, with no role for religious employers who oppose contraception.

o Insurance companies will be required to provide contraception coverage to these women free of charge.

o The new policy does not affect existing state requirements concerning contraception coverage.

I love this deep cost-benefit analysis that is tacked on to the announcement of the new dispensation:

Covering contraception is cost neutral since it saves money by keeping women healthy and preventing spending on other health services. For example, there was no increase in premiums when contraception was added to the Federal Employees Health Benefit System and required of non-religious employers in Hawaii. One study found that covering contraception saved employees $97 per year, per employee.

Where does this fit in under the Administrative Procedure Act and its supposedly deliberative process? it sounds a little bit like one-man rule to me. Maybe our friends at The Volokh Conspiracy will explain.

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