The Contraception Mandate Was Not An Essential Part of Obamacare

Yesterday’s Supreme Court decision in favor of
Hobby Lobby has been portrayed as a
blow to Obamacare, because it allows closely held corporations
to opt out of some of the contraception coverage requirements
imposed as part of the health law. That’s not wrong, exactly, but
it overstates the case, because it’s not a very significant setback
for the law.

That’s because the contraception was never essential to
Obamacare as conceived by its legislative authors. Indeed, as
Ramesh Ponnuru
notes at National Review, it was so
inessential to the law that it wasn’t included in the actual
legislation. Instead, the mandate was put in place by the Obama
administration’s Department of Health and Human Services (HHS) as
part of the law’s essential benefits rule, which left an awful lot
of discretion to regulators.

It’s possible, in fact, that the law would not have passed had
it explicitly included a contraception mandate. Remember that
several Catholic Democrats, led by Rep. Bart Stupak, were among the
final holdouts to agree to vote for the bill, which had already
been passed in the Senate. Their votes were, by most accounts,
crucial to its passage, and they
agreed to vote for the bill only after making a deal with the
White House that would prohibit federal funding to be used for
abortions.

Two years later, Stupak
said that he believed the HHS mandate violated the White House
deal, as well as existing law, because it allowed for federal
funding of abortifacients. It’s obviously impossible to be certain
about how things might have turned out in a counterfactual like
this, but it’s certainly easy to imagine that if the mandate had
been in place prior to the law’s passage in the House, it would not
have garnered the support of Stupak and his fellow Catholic
Democrats—and would have died in the House as a result.

That is not to say that the decision isn’t important in other
ways. But as a blow to Obamacare it doesn’t pack much of a
punch.