United States: The Affordable Care Act's Contraceptive Mandate: A Loss In Massachusetts And Other Current Events

Last Updated: March 21 2018
Article by Patricia A. Moran

The contraceptive mandate, one of the more controversial provisions of the Affordable Care Act, continues to make news as various stakeholders duke it out in and out of court. This blog post describes the history of the contraceptive mandate as well as a recent court loss delivered to the Commonwealth of Massachusetts.

When it comes to the Affordable Care Act's contraceptive mandate, the war's not over – not even close. But on March 12, 2018, Trump administration won a key battle in the United States District Court for the District of Massachusetts.

A Brief History of the Contraceptive Mandate

The Patient Protection and Affordable Care Act of 2010 (also known as the "Affordable Care Act" or "ACA") requires most health plans to provide coverage of preventive care without cost-sharing. For women, these preventive services include FDA-approved contraception methods as prescribed by a health care provider.

The contraceptive mandate (the "Mandate") has proved controversial from the get-go, and throughout the Obama Administration the Mandate was modified (both through regulation and litigation) to provide various exemptions and accommodations for employers with religious or moral objections to including contraceptive services in their employer-provided health plans.

  • In 2012, the Departments of Labor, Health and Human Services, and the Treasury (the "Departments") provided a full exemption from the Mandate for a narrow group of religious employers (generally, churches and houses of worship).
  • Over 2013 and 2014, the Departments developed an accommodation for nonprofit, religious organizations that, on account of religious objections, oppose providing coverage to employees under their health plans for some or all of the contraceptive services. The accommodation required the objecting employer to self-certify its objection. As well, the employer was required to notify the department of Health and Human Services, the plan's insurer, or the plan's third party administration of its objection; once notified, these parties would separately provide the coverage.
  • Hobby Lobby (among others) asserted in a series of lawsuits that the accommodation was too narrow and should be extended to additional entities. In 2014, the United States Supreme Court agreed, and the accommodation was extended to closely-held, private, for-profit entities, whose owners object to the mandate on religious grounds, at least if there are less restrictive means of meeting the government's objectives.
  • The Little Sisters of the Poor (and others) asserted in court that the accommodation was too intrusive (i.e. even though the employer was somewhat removed from the process, at the end of the day employees were still able to obtain contraceptive coverage through the employer's plan). At the time of President Trump's election, this line of cases remained largely unresolved in court.

Trump Provides a Broad Exemption to the Mandate

During his presidential campaign, candidate Trump made repeated promises to repeal the ACA generally, and gave specific attention to the contraceptive mandate. Following his election, President Trump took near immediate actions to claw back the contraceptive mandate. On May 4, 2017, President Trump issued an executive order directing the Departments to expand the exemption to cover additional entities, and effective October 6, 2017, the Departments issued rules providing a full exemption from the Mandate to any non-governmental plan sponsor that objects on religious grounds.

A Challenge – and Loss – By Massachusetts

In the days and weeks following the publication of the October 6, 2017 rules, several state attorneys general, including Massachusetts AG Maura Healy, filed suit against the Departments challenging the validity of the October 6, 2017 rules. In its complaint filed on October 6, 2017, Massachusetts claimed, among other things, that the Departments did not engage in proper rulemaking, that the rules violate the Establishment Clause of the First Amendment of the United States Constitution, and that the rules violate the Due Process Clause of the Fifth Amendment of the United States Constitution.

Meanwhile in Boston, Massachusetts Governor Charlie Baker signed on November 20, 2017 "An Act Relative to Advancing Contraceptive Coverage and Economic Security in Our State" (the "ACCESS Act"). The ACCESS Act requires insured health plans to, in effect, honor the Mandate, with only a narrow exception for churches similar to the original narrow exemption provided by the Departments in 2012. The ACCESS Act does not impose any Mandate-like requirements on self-funded health plans.

On March 12, 2018, Judge Nathaniel Gorton of the United States District Court for the District of Massachusetts found that the Commonwealth failed to show that it had standing – i.e. that it would be injured by the Departments' conduct – and dismissed the Commonwealth's suit. More specifically, Massachusetts did not identify any particular woman likely to be harmed by the new rules, nor did it identify any particular employer who planned to avail itself of the broadened exemption, nor did it show that Massachusetts itself faced injury. The Commonwealth also failed to address the fact that the ACCESS Act ensured dollar-one contraceptive coverage for a large portion of Massachusetts employees, potentially lessening any blow of the October 6, 2017 rules.

But the Battle Wages On

Lawsuits challenging the October 6, 2017 rules remain active in other states including California, Pennsylvania and Washington. Notably, the Eastern District of Pennsylvania temporarily blocked the rules on December 15, 2017. In his decision in Massachusetts, Judge Gorton noted that Pennsylvania and California had done a better job than Massachusetts in showing that employers in those states intended to apply the October 6, 2017 rules, perhaps foreshadowing a better shot at success in the courts. In short, the battle over the controversial Mandate shows no sign of wrapping up anytime soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions