Section 2713(a)(4) of the Affordable Care Act does not explicitly include contraception, and the Senate floor debate over the addition of Section 2713(a)(4) to the Act demonstrates that it the amendment was intended to prevent diseases, not to end pregnancies.
Senator Barbara Mikulsi (D-MD), who offered the amendment which became Section 2713(a)(4) of the Affordable Care Act, issued a press release providing the following description of her amendment:
Services that would be covered under the Mikulski Amendment are likely to include cervical cancer screenings for a broad group of women; annual mammograms for women under 50; pregnancy and postpartum depression screenings; screenings for domestic violence; and annual women’s health screenings, which would include testing for diseases that are leading causes of death for women such as heart disease and diabetes.[i]
In her prepared floor statement, Senator Mikulski again emphasized that her amendment was meant to cover life-saving, disease-preventing services, concluding:
Often health care doesn’t cover basic women’s health care like mammograms and cervical cancer screenings. My amendment is about saving lives and saving money to give women access to comprehensive preventive services that are affordable and life saving.[ii]
Further, during a debate over the amendment on the Senate Floor on December 3, 2009, Senator Mikulski had the following exchange with Senator Robert Casey (D-PA) in which she clarified that abortion was not intended to be covered “in any way” and, in fact, her amendment was “strictly concerned with ensuring that women get the kind of preventive screenings and treatments they need to prevent diseases particular to women…” (emphasis added):
Mr. CASEY. There is one clarification I would like to ask the Senator. I know we discussed it during the HELP markup and it was not clarified at that time and thus I chose to vote against the amendment because of the possibility that it might be construed so broadly as to cover abortion. But I understand that the Senator has now clarified specifically that this amendment will not cover abortion in any way. Specifically, abortion has never been defined as a preventive service and there is neither legislative intent nor the language in this amendment to cover abortion as a preventive service or to mandate abortion coverage in any way. I ask the Senator is that correct?
Ms. MIKULSKI. Yes, that is correct. This amendment does not cover abortion. Abortion has never been defined as a preventive service. This amendment is strictly concerned with ensuring that women get the kind of preventive screenings and treatments they need to prevent diseases particular to women such as breast cancer and cervical cancer. There is neither legislative intent nor legislative language that would cover abortion under this amendment, nor would abortion coverage be mandated in any way by the Secretary of Health and Human Services.[iii]
First, pregnancy is not a disease and it is, thus, illogical to include elective contraceptive-coverage through an amendment “strictly concerned” with preventing diseases. Moreover, it is directly contrary to Senator Mikulski’s assurance that abortion would not be covered “in any way” to include abortion-inducing drugs, such as ella, in preventive care and screenings.
[i] Press Release, Senator Barbara Mikulski, Mikulski Puts Women First in Health Care Debate (November 30, 2009), available at http://mikulski.senate.gov/media/record.cfm?id=320304 (last visited Sept. 20, 2011).
[iii] Cong. Rec. S12274 (daily ed. Dec. 3, 2009) (colloquy between Sen. Mikulski and Sen. Casey), available at http://thomas.loc.gov. On December 1, 2009, Senator Mikulski stated: “There are no abortion services included in the Mikulski amendment. It is screening for diseases that are the biggest killers for women – the silent killers of women. It also provides family planning – but family planning as recognized by other acts.” Cong. Rec. S12028 (daily ed. Dec. 1, 2009) (statement of Senator Mikulski), available at http://thomas.loc.gov.