Tobacco and Contraceptives: Legislative Preemption

Tobacco and Contraceptives: Legislative Preemption

JURIST Guest Columnist Matthew Cavedon, Emory University School of Law Class of 2015, compares the Department of Health and Human Services’s contraception mandate to the Food and Drug Administration’s attempt to regulate tobacco…

As 24 lawsuits filed against the Department of Health and Human Services’s (HHS) contraception mandate wind their way through the courts over the next year, there will be plenty of controversy regarding religious liberty, sexual rights and public health. However, Congress has already passed 11 laws protecting the conscientious objection to contraception and abortion. Thus, the HHS cannot simply promulgate a contraceptive mandate when the legislative body has already expressed its intent. This situation is comparable to the tobacco industry in 2000, when the US Supreme Court held that the Food and Drug Administration (FDA) could not regulate tobacco when Congress had passed six statutes regulating the substance.

Many people were surprised by HHS Secretary Kathleen Sebelius’s decision to force everyone to pay for contraceptives — including several that induce abortions — as part of President Barack Obama’s preventive care mandate. Congress has passed statutes protecting the rights of people with conscientious objections to contraception and abortion. Some of these statutes protect medical students from having to carry out or observe abortions during their training. Others protect Medicaid-managed care providers from having to refer patients for abortions. Another class of these statutes protect federal employees from having to purchase contraceptive coverage in their health plans. How can HHS force Americans to support things that Congress says they should be free to reject?

People made a similar objection in 1996 when the FDA tried to regulate tobacco. Under a law passed in 1938, the FDA could regulate “drugs” and “devices.” The law broadly defined drugs and devices as things “intended the affect the structure or any function of the body.” Tobacco plausibly fits that definition. The FDA was legally required to prove that a drug or device was safe before letting it stay on the market. Since the FDA could not do that for tobacco, its regulation would have led to a ban.

The FDA had never held that it could regulate tobacco under the 1938 law and Congress had repeatedly refused to give it the authority to do so. In fact, Congress had passed six independent statutes to regulate tobacco in the meantime, including one which regulated its labeling and advertising. Congress made it clear that it wanted to keep tobacco on the market, something the FDA could not allow if it also regulated tobacco.

This legal showdown ended in 2000 with the Supreme Court’s ruling in FDA v. Brown & Williamson Tobacco Corp. The Court stopped the FDA’s proposed regulation and found that Congress had created an overall regulatory scheme in the other statutes — one that an FDA ban on tobacco would overthrow. Congress creates the law in the American system of government, so neither the FDA nor any other unelected agency could decide on its own to ban tobacco.

The HHS contraception mandate is similar to the FDA’s proposed tobacco regulation in many ways. Just as the FDA plausibly defined tobacco as a “drug” or “device,” HHS can plausibly claim that contraception is a kind of “preventive care.” However, the FDA could not ban tobacco when Congress showed that it wanted tobacco to stay in the market; similarly HHS cannot mandate contraceptive coverage when Congress has shown that it believes in strong conscientious protection. Congress repeatedly refused to give the FDA jurisdiction over tobacco. Following this pattern, it has rejected 21 bills over the past 15 years that would have given HHS the authority to mandate contraceptive coverage.

Most importantly, the Patient Protection and Affordable Care Act tells HHS to respect the other laws Congress has passed. “Nothing in this Act,” it reads, “shall be construed to have any effect” on federal laws protecting conscientious objection to contraception and abortion. Congress knew it had expressed its intent elsewhere, and it told HHS to take heed. Simply by reading the text of the Act, HHS should have recognized that Congress wanted people to stay true to their consciences.

American democracy depends on the separation of powers, and Americans know that their elected Congress makes the law. Executive agencies do not have the authority to decide controversial questions, be they tobacco bans or contraception and abortion mandates, once Congress has settled them. The HHS mandate runs against Congress’s intent in the same way that the FDA’s attempt to regulate tobacco did. It should meet a similar fate.

Matthew Cavedon is a student at the Emory University School of Law and the Candler School of Theology. He is pursuing dual JD and Masters of Theological Studies degrees through Emory’s Center for the Study of Law and Religion.

Suggested citation: Matthew Cavedon, Tobacco and Contraceptives: Legislative Preemption, JURIST – Dateline, Sept. 2, 2012,

This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST’s student commentary service. Please direct any questions or comments to her at

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