December 5 2017
Acting Secretary Eric Hargan
Department of Health and Human Services
Hubert H. Humphrey Building
200 Independence Avenue SW., Room 445–G,
Washington, DC 20201
Dear Acting Secretary Hargan,
Human Rights Watch unequivocally opposes the Interim Final Rule (IFR) on Moral Exemptions and Accommodations for the Coverage of Certain Preventative Services under the ACA (CMS-9925-IFC). The IFR undermines the Patient Protection and Affordable Care Act’s (ACA) contraceptive coverage requirement, which was designed to promote preventive medicine, reduce future medical costs, and improve the health, equality, and economic security of women and families. Over 62 million women with private insurance now have coverage of these vital health care services, including breast and cervical cancer screening, breastfeeding services and supplies, and contraception and contraceptive counseling.
This IFR allows all non-profits, for-profits that are not publicly traded, and universities to deny their employees or students contraceptive coverage based on moral objections. By allowing nearly any employer and university to use their moral beliefs to deprive women of contraceptive coverage, this IFR will harm women’s health and well-being. It discriminates against women in violation of international human rights standards, including the rights to non-discrimination, the right to health, and the right to decide on the number and spacing of children. Human Rights Watch calls on the Departments to rescind the IFR.
I.Birth Control Is Critical to Women’s Health and to Realization of other Human Rights
One of the unique healthcare challenges that women in the United States face is that they use more health services than men yet earn less on average than men. As a result, women are particularly likely to face financial barriers to accessing care, which may lead women to forgo necessary care because of requirements that patients pay some portion of the cost of services, i.e. cost-sharing. Before the ACA, one study found that women ages 13 to 45 were spending between 30% and 44% of their total out-of-pocket health costs just on birth control. Another study found that out-of-pocket costs prevented many women, not just low-income women, from accessing preventive services, including contraception. Eliminating cost barriers has helped increase access to contraception for women with employer-sponsored coverage. Because of the birth control benefit, women saved more than $1.4 billion in out-of-pocket costs on birth control pills in 2013 alone.
The goal of preventive health care is to help people control, track, and better manage their life-long health, and the health of their families. Similarly, the goal of prevention of unintended pregnancy is to help women control the time and spacing of their pregnancies, or prevent pregnancy altogether, in accordance with their own desires and to improve maternal, child, and family health. Unintended pregnancies are associated with higher rates of long-term health complications for mother and infant. Women with unplanned pregnancies are more likely to delay prenatal care, leaving their health complications unaddressed and increasing risk of infant mortality, birth defects, low birth weight, and preterm birth. Unintended pregnancy also increases the risk of physical and mental health problems for the child and has a negative impact on health behaviors such as breast-feeding. Women with unintended pregnancies are also at higher risk for maternal morbidity and mortality, maternal depression, or experiencing physical violence during pregnancy.
Unintended pregnancy rates are higher in the United States than in most other developed countries, with approximately 45% of pregnancies unintended. The US has the highest rate of maternal mortality in the developed world. Contraceptive efficacy in preventing unintended pregnancy is well established and supported in evidence. Additionally, contraception is considered a major factor in reducing rates of maternal mortality and morbidity.
In the United States, insurance coverage of contraception is critical to removing financial barriers to accessing it. Unintended pregnancy rates are highest among those least able to afford contraception, particularly those who face additional barriers to accessing health care services including economic instability for poor and low-income women and/or discrimination based on race or ethnicity for minority women.
Birth control is vital in furthering equal opportunity for women, enabling women to be equal participants in the social, political, and economic life of the nation. By enabling women to decide if and when to become parents, birth control allows women equal opportunity as men to pursue professional and educational opportunities. Studies show that access to contraception has increased women’s wages and lifetime earnings. In fact, the availability of the oral contraceptive pill alone is associated with roughly one-third of the total wage gains for women born from the mid l940s to early 1950s. Access to oral contraceptives may also account for up to one-third of the increase in college enrollment by women in the 1970s, which was followed by women’s more equitable presence in law, medicine, and other professions. The Departments have previously acknowledged these significant benefits, noting that prior to the ACA’s passage, disparities in healthcare coverage “place[d] women in the workforce at a disadvantage compared to their male co-workers,” and that the contraceptive coverage benefit "furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force.”
II.The IFR Undermines Women’s Human Rights
Realization of the right to health requires that health facilities, goods, and services be available, accessible, and of good quality, and provided without discrimination. This IFR will deprive employees and students of coverage for contraception and, in doing so, undermines women’s fundamental human rights to equality, health, and the right to decide on the number and spacing of their children. While proponents of sweeping exemptions use the rhetoric of religious liberty, the proposed IFR goes far beyond what the freedom of religion protects by effectively permitting employers block their employees’ access to contraceptive coverage.
a.Right to Health and Access to Reproductive Health Care
The International Covenant on Economic, Social and Cultural Rights (ICESCR) specifies that everyone has the right “to the enjoyment of the highest attainable standard of physical and mental health,” and obligates governments to implement the right without discrimination on the basis of sex, age, or other prohibited grounds. The US has not ratified the ICESCR but, as a signatory, has an obligation not to undermine the object and purpose of the treaty. The right to health is also inextricably linked to provisions on the right to life and the right to non-discrimination that are included in the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified.
The Committee on Economic, Social and Cultural Rights, the body charged with interpreting and monitoring the implementation of the ICESCR, has identified four essential components to the right to health: availability, accessibility, acceptability and quality. Even though the US is not a party to the ICESCR, the Committee’s interpretation represents a useful and authoritative guide to the steps governments should take to realize and protect the right to health and other human rights. The IFR will reduce the economic accessibility of contraception for those women whose employers make use of the exception. The ESCR Committee in its General Comment 14 has stated that “[t]he realization of women’s right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.” The IFR will limit access to contraception for some women, infringing on what the Committee has identified as a freedom encompassed in the right to health: “the right to control one's health and body, including sexual and reproductive freedom.”
Sexual and reproductive health and rights are addressed specifically in a number of international treaties and other authoritative sources. Article 12 of the Convention on the Elimination of Discrimination Against Women (CEDAW) provides that “[s]tates parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” The United States has signed, but not ratified, CEDAW, a position that requires the government to refrain from taking actions that would undermine the object and purpose of the treaty. The CEDAW Committee in its General Recommendation 24 affirmed states parties’ obligation to respect women’s access to reproductive health services and to “refrain from obstructing action taken by women in pursuit of their health goals.” As with the ICESCR, even though the US is not a party to CEDAW, the Committee’s interpretation represents a useful and authoritative guide to the steps governments should take to realize and protect the range of human rights addressed under the Convention.
Section I describes why access to effective methods of birth control is essential to women’s sexual and reproductive health and rights. By effectively reversing the ACA’s contraceptive mandate with regard to some employers, the will IFR harm women’s health and lead to cost barriers that could prevent impacted women from controlling their reproductive health.
i.Right to Information
The right to information is set forth in numerous human rights treaties. CEDAW asserts that states should provide women “[t]he same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.” The ICESCR obliges state parties to provide complete and accurate information necessary for the protection and promotion of rights, including the right to health. Furthermore, the CESCR Committee in its General Comment 14 has stated that the right to health includes the right to health-related education and information, including on sexual and reproductive health. The CEDAW Committee has also noted that, under article 10(h) of CEDAW, women must have access to information about contraceptive measures, sex education and family-planning services in order to make informed decisions.
The IFR allows entities to refuse to cover contraceptive counseling between woman and her health care provider about her specific health history and contraceptive needs. This interferes with the relationship women have with their regular health care provider and conversations about if, and when, to become pregnant and which contraceptive to use when not seeking pregnancy.
b.The Right to Non-Discrimination
Non-discrimination is a central principle of international human rights law. As a party to the ICCPR, the US is obligated to guarantee effective protection against discrimination. CEDAW mandates that state parties take action to “eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to healthcare services, including those related to family planning.” Prohibited discrimination can be either direct or, as in this case, indirect –where laws and policies that may appear to be neutral at face value have a disproportionate impact on the exercise of rights as distinguished by prohibited grounds of discrimination.
By creating broad exemptions to the ACA’s contraceptive mandate, which has expanded access to contraception for millions of women, the IFR singles out health insurance that women use and that is essential for women's health and equality. It also makes no effort ensure that the women effected will continue to have access to quality birth control at no-cost. As Section I notes, the contraceptive mandate has ensured women equal access to crucial preventive services. The IFR will impact women almost exclusively, in a way that seriously undermines their right to health.
This IFR will cause people to lose contraceptive coverage, making contraceptive care financially out of reach for many women, and as a result will harm their health and well-being. It is discriminatory in that it impacts only women and undermines the United States’ international legal commitments. For all of these reasons Human Rights Watch calls on the Departments to rescind the IFR.
Senior Researcher, Women's Rights
Human Rights Watch
 This comment uses the term "women" because women are targeted by the IFRs. We recognize, however, that the denial of reproductive health care and insurance coverage for such care also affects people who do not identify as women, including some gender non-conforming people and some transgender men.
 National Women’s Law Center, “New Data Estimates 62.4 Million Women Have Coverage of Birth Control Without Out-Of-Pocket Costs” (Sept. 2017), https://nwlc.org/wp-content/uploads/2017/09/New-Preventive-Services-Esti....
 US Census Bureau, “Income, Poverty, and Health Insurance Coverage in the United States: 2008,” Table A-2 (2009).
 Nora Becker and Daniel Polsky, “Women Saw Large Decrease In Out-of-Pocket Spending for Contraceptives After ACA Mandate Removed,” Women’s Health, 34(7) (2015) p. 1204-1211.
 Su-Ying Liang et al., “Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006,” 83 Contraception 491, 531 (2010); see also Inst. of Med. of the Nat’l Acads., “Clinical Preventive Services for Women: Closing the Gaps,” 19 (2011), https://www.nap.edu/read/13181/chapter/1. Another study of 11,000 employees with employer-sponsored coverage found that cost-sharing reduced use of pap smears, preventive counseling, and mammography. Geetesh Solanki et al., “The Direct and Indirect Effects of Cost-Sharing on the Use of Preventive Services,” 34 Health Servs. Research 1331 (2000) p. 1342-43; see also David Machledt & Jane Perkins, “Medicaid Premiums & Cost-Sharing” 2-3 (2014), http://www.healthlaw.org/publications/search-publications/Medicaid-Premi....
 Adam Sonfield et al., “Impact of the Federal Contraceptive Coverage Guarantee on Out-of-Pocket Payments for Contraceptives: 2014 Update,” 91 Contraception (2014) p. 44, 45-47.
 Nora Becker and Daniel Polsky, “Women Saw Large Decrease In Out-Of-Pocket Spending For Contraceptives After ACA Mandate Removed Cost Sharing,” Health Affairs, 34, no.7 (2015) p. 1204-1211, http://content.healthaffairs.org/content/34/7/1204.full.pdf+html.
 Women’s Preventive Services Initiative, “Recommendations for Preventive Services for Women,” 83 (2016), https://www.womenspreventivehealth.org/final-report/.
 Conde-Agudelo A, Rosas-Bermudez A and Kafury-Goeta AC, “Birth spacing and risk of adverse perinatal outcomes: a meta-analysis,” JAMA 295 (2006) p. 1809–23.
 Lawrence Finer and Mia Zolna, “Declines in unintended pregnancy in the United States, 2008–2011,” New England Journal of Medicine, 374(9) (2016), p. 843–852,
 Amy Tsui, Raegan McDonald-Mosley and Anne Burke, “Family Planning and the Burden of Unintended Pregnancies,” Epidemiologic Reviews, 32(1) (2010) p. 152-174, doi:10.1093/epirev/mxq012.
 Lawrence Finer and Mia Zolna, “Declines in unintended pregnancy in the United States, 2008–2011,” New England Journal of Medicine, 374(9) (2016) p. 843–852.
 Christopher Murray, Haidong Wang and Nicholas Kassebaum, “Sharp Decline in Maternal and Child Deaths Globally, New Data Show,” Institute for Health Metrics and Evaluation, University of Washington (2016).
 James Trussell, “Contraceptive failure in the United States,” Contraception 83(5) (2011) p. 397-404.
 Guttmacher Institute, “Fact Sheet: Unintended Pregnancy in the United States” (2016), https://www.guttmacher.org/fact-sheet/unintended-pregnancy-united-states.
 See, e.g., Jennifer J. Frost and Laura Duberstein Lindberg, “Reasons for Using Contraception: Perspectives of US Women Seeking Care at Specialized Family Planning Clinics,” 87 Contraception 465 (2013) p. 467; Adam Sonfield, et al., “The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children,” Guttmacher Institute (2013), http://www.guttmacher.org/pubs/social-economic-benefits.pdf.
 See Martha J. Bailey et al., “The Opt-in Revolution? Contraception and the Gender Gap in Wages,” American Economic Journal: Applied Economics 4(3)(2012) p. 225-254; Claudia Goldin and Lawrence F. Katz, “The Power of the Pill: Oral Contraceptives and Women's Career and Marriage Decisions,” 110 J. Pol. Econ. (2002) p. 730, 749.
 Heinrich H. Hock, “The Pill and the College Attainment of American Women and Men” Florida State University Working Paper (2005), http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.594.6229&rep=re....
 Claudia Goldin and Lawrence F. Katz, “The Power of the Pill: Oral Contraceptives and Women's Career and Marriage Decisions,” 110 Journal of Political Economy (2002) p. 730, 749, https://dash.har vard.edu/handle/1 /2624453.
 “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act,” 77 Fed. Reg. 8725 (2012), https://www.gpo.gov/fdsys/granule/FR-2012-02-15/2012-3547/content-detail....
 See, e.g., Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, February 2004, E/CN.4/2004/49, para. 41.
 International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 12(1). While the Covenant recognizes that developing countries are under a duty of “progressive realization” of the right, this is not true for developed countries, such as the United States, which are responsible for ensuring the Covenant rights in full.
 Vienna Convention on the Law of Treaties, adopted May 29, 1969, UN Doc. A/Conf.39/27, 1155 UNTS 331, entered into force January 27, 1980, art. 18(1).
 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, art. 10.
 Committee on Economic, Social and Cultural Rights (CESCR), “Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights,” General Comment No. 14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument (accessed October 10, 2008), para. 12.
 Committee on Economic, Social and Cultural Rights, “General Comment No. 14, The Right to the Highest Attainable Standard of Health,” U.N. Doc. E/C.12/2000/4 (2000), para. 21.
 Ibid., para. 8.
 In the 1994 Cairo Programme of Action on Population and Development, delegates from governments around the world pledged to eliminate all practices that discriminate against women and to assist women to “establish and realize their rights, including those that relate to reproductive and sexual health.” In the 1995 Beijing Declaration and Platform for Action, delegates from governments around the world recognized that women’s human rights include their right to have control over and decide freely and responsibly on matters related to their sexuality free of coercion, discrimination and violence. See United Nations, Programme of Action of the United Nations International Conference on Population and Development (New York: United Nations Publications, 1994), A/CONF.171/13, 18 October 1994, para. 4.4(c) and United nations, Beijing Declaration and Platform for Action (New York: United Nations Publications, 1995), A/CONF.177/20, 17 October 1995, para. 223.
 CEDAW, art. 12
 CEDAW Committee, “General Recommendation 24, Women and Health (Article 12),” U.N. Doc. No. A/54/38/Rev.1 (1999), para. 14.
 ICCPR, art. 19(2); American Convention on Human Rights, art. 13(1). See also Inter-American Court, Claude-Reyes and others Case, Judgment of September 19, 2006 Inter-Am Ct.H.R., Series C. No. 151, para. 264.
 CEDAW, art. 16(e).
 See ICESCR, article 2(2). See also Committee on Economic, Social and Cultural Rights, “General Comment No. 14, The Right to the Highest Attainable Standard of Health,” U.N. Doc. E/C.12/2000/4 (2000), paras. 12(b), 18 and 19.
 Committee on Economic, Social and Cultural Rights, “General Comment No. 14, The Right to the Highest Attainable Standard of Health,” U.N. Doc. E/C.12/2000/4 (2000), para. 11.
 CEDAW Committee, “General Recommendation no. 21, on equality in marriage and family relations,” HRI/GEN/1/Rev.9 (Vol.II), para. 22.
 International protections for the right to non-discrimination include: ICCPR , arts. 2, 4, 26; ICESCR art.2(2); CEDAW, art. 2; International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on October 21, 1994, art. 5; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), adopted December 18, 1990, G.A. Res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003., art. 1(1), art. 7.
 ICCPR, art. 26.
 CEDAW, art. 12.
 Committee on Economic, Social and Cultural Rights, “General Comment No. 20, Non-discrimination in economic, social and cultural rights,” U.N. Doc. E/C.12/GC/20 (2009), para. 10.