According to the government’s own statistics, almost 100 million Americans don’t have plans that must comply with the mandate.

That is over one-third of all Americans under age 65. For instance, HHS has given a free pass to big corporations like Exxon, Pepsi Bottling, Chevron, and Visa, and it lets off huge municipalities like New York City and even the world’s largest employer—the US military. But HHS has taken the Little Sisters of the Poor to the Supreme Court insisting they must either violate their faith or pay crushing annual fines.

Here’s how the 100 million break down:

HHS Has Exempted 1/3 of Employer-Provided Plans

About 45 million Americans¹ are on “grandfathered” employer plans² that are required to comply with some of the ACA, like covering dependents up to age 26, but are exempted from the contraception mandate.³ Big corporations like Exxon and Visa either don’t cover all the procedures and contraceptive drugs required by the mandate or don’t provide them for free as required by the mandate.⁴ The government exempted these corporations for the sake of convenience.⁵ If they can have flexibility in their insurance plans for reasons of cost or convenience, the Little Sisters should be able to have it to live out their faith.

The Plan for Military Families (TRICARE) is Exempt from the Mandate

The military is the largest employer in the U.S., with over 1,000 times as many employees as the Little Sisters of the Poor. So there are about 9.5 million Americans in this government-run plan that is exempted⁶ from the mandate.

Large Health Plans for Cities like New York Are Exempt

Plans offered by cities and counties are among the “grandfathered” plans covering 45 million Americans. For instance, most of New York City’s healthcare plans are grandfathered.⁷ And at least one,⁸ and likely several,⁹ of those plans do not cover most prescription drugs, including contraceptives.

Disabled Americans Who Depend on Medicare Fall Outside the Mandate

Another entirely government-run program that is exempted from the mandate and does not provide all the free procedures and drugs is Medicare,¹⁰ which covers 8 million disabled Americans under the age of 65.¹¹

Uninsured Americans Can’t Get These Free Services Either

The final major group outside the mandate are those without insurance. The primary reason post-ACA that Americans give for still not having insurance is that they can't afford it.¹² If instead of trying to force the Little Sisters of the Poor to provide the free mandated services, HHS simply offered them through the healthcare exchange, it could immediately provide the free services to anyone working for the Little Sisters. The government could also make similar plans available for the 33 million uninsured, women in all of the above groups in secular exempted plans, and any women in religiously protected plans. Instead, HHS is fighting to force the Little Sisters of the Poor to offer these services that violate their religious beliefs through their religiously protected plan. This makes no sense, and demonstrates that this case is clearly not about whether American women will be able to get free contraception.

What is the Mandate?

The mandate applies to women’s contraception, sterilization, and abortifacients like the ella pill that is taken one week after sex.¹³ The mandate requires that all these FDA-approved services be provided for free without a co-pay.¹⁴

Why Only Under 65?

Although there has been some talk about its impact on STDs, the main justification given by the government has been controlling births. Since vasectomies and other forms of male contraception are not covered, the population numbers above are for Americans under 65. If we removed the age restriction, 141 million Americans do not have plans covered by the mandate, which is almost 45% of the U.S. population. But whether one is looking at one-third of the population or nearly half that don’t have plans that fall under the mandate, the question is why HHS is fighting so hard to force the Little Sisters to offer these mandated services that violate their religious beliefs instead of working to ensure all these other women can get these same services (and removing the religious freedom concern of the Little Sisters) by simply providing them through the healthcare exchanges.

Read more about the case

¹The Federal Register estimates that about 45 million Americans are on various types of grandfathered healthcare plans.

²Here's the law exempting these grandfathered plans from the HHS mandate.

³The government says, at pages 9-10 of its brief, that it’s important to cover all the services, and to cover them without any co-pays.

⁴This Exxon plan excludes some methods of contraception entirely and requires co-pay for others. This Visa plan requires co-pays for some options and for counseling about family planning.

⁵Read the Supreme Court opinion at page 40.

⁶Here's a bill from Congress that — at Section 2, Paragraph 9 — explains the situation and tries to require Tricare to provide Mandate-level coverage. The bill did not become law.

⁷ Here is the site explaining that most of the plans for New York City employees are grandfathered.

⁸ This plan for New York City employees doesn't cover any prescription drugs.

⁹Scroll down this list and you'll see a number of New York City plans that do not cover any prescription drugs.

¹⁰This document explains that Medicare does not cover all the mandated services.

¹¹Click here for a report on the number of people under 65 on Medicare.

¹²Click here for a report on key facts about the uninsured population.

¹³The government's website states all FDA approved contraceptive methods must be included. And here's an FDA poster that lists the approved contraceptive methods, including the week-after pill at the bottom.

¹⁴Ibid (see same citations above).