Analysis of the Rule-making Proceeding

How was this contraception/abortion mandate imposed? What agencies were involved? What were the legal steps, and what was the legal basis for the ruling? Is the decision sound, and does it comply with legal requirements? Can it be challenged in court?

These questions have received very little attention in the public discussion, because the answers are complex and the evidence is not easy to evaluate. Upon close examination, however, there are serious weaknesses in the administration’s case.

As it happens, St. Paul’s member Dr. Christopher Barnekov has extensive experience in precisely this sort of regulatory proceeding. As a policy analyst, policy designer, and senior economist in seven federal agencies over a period four decades, he not only helped design, draft and evaluate proposed legislation, but also participated intensively in the regulatory proceedings implementing the new laws.

We present two perspectives from the viewpoint of a veteran federal regulator. Both are written in English, not ‘bureaucratese.’ One is a “tour guide” describing the various agencies and entities involved in this decision and what each did. The other is a very close examination of the argument and evidence used to justify the decision. It looks particularly at the claim by HHS that contraceptive coverage is “costless,” that it will actually reduce overall healthcare costs. This is the key argument justifying the decision and enabling HHS to mandate that insurance carriers provide contraceptive/abortifacient coverage “free” and without charging policy sponsors (employers). Because this is an extensive analysis, it is presented both as an Internet document and also in downloadable PDF format .

Here is a brief summary of Dr. Barnekov’s background and experience.