The Trump administration is relaxing an Obama-era requirement that nearly all employers offer health insurance that covers a wide array of contraceptive methods.
New regulations released Friday significantly broaden the types of companies and organizations that can request an exemption from that rule. This could lead to many American women who currently receive no-cost contraception having to pay out of pocket for their medication.
The new rules take effect immediately. And they allow large, publicly traded companies to seek an exemption from the birth control requirement if they have a religious or moral objection to providing such coverage. The Obama administration barred these large businesses from such exemptions.
“This provides an exemption, a limited one, for those with religious or moral convictions implicated by the contraceptive mandate,” an HHS official said in a Friday morning briefing with reporters previewing the rule.
HHS projects that “99.9 percent of women” will be unaffected by these changes but gave little explanation of how it came to that data point. Officials did note that only a few hundred small businesses have so far raised religious or moral objections against the requirement by filing lawsuits.
But it is possible that larger publicly traded companies could join their ranks as the exemption gets widened. And the rule itself is blunt about the possible effect, noting that “These final rules will result in some enrollees in plans of exempt entities not receiving coverage or payments for contraceptive services.”
Women’s health groups, including the National Women’s Law Center and the Center for Reproductive Rights, have been preparing to file lawsuits against the regulation, based on an earlier draft that Vox obtained in late May.
The new rules have been designed specifically to guard against those expected challenges, a source familiar with their drafting told Vox. The Trump administration technically released two separate rules: one broadening the religious exemption and one creating a new moral exemption from the mandate. The reason is that if a court were to strike down one rule in a lawsuit, the other would likely still stand.
“Bifurcating the rule into two separate parts is like a severability clause on steroids,” Nicholas Bagley, a health law professor at the University of Michigan, said. “It’s signaling in the strongest possible terms that the agency independently wants both parts of the rule to remain in place, even if one, or part of one, is invalidated.”
That strategy should be effective, forcing opponents to chase two targets. “The courts,” Bagley said, “will almost certainly respect that policy choice.”
Obamacare requires nearly all insurance plans to cover birth control — a provision protested by religious employers
This rule would significantly overhaul the birth control mandate as it had been implemented by the Obama administration.
The birth control mandate is one of eight women’s preventive health benefits that the Affordable Care Act requires health plans to provide without any cost to the patient. Other required benefits include breastfeeding equipment, HPV testing, and domestic violence screenings.
Obamacare directed the Institute of Medicine, an independent, congressionally chartered body, to define what medical services should be included as women’s preventive health benefits. The health care law did not include a specific list of services.
The IOM’s decision to include birth control as a preventive benefit set off a fierce political fight, with religious business owners, hospitals, and universities protesting the requirement to cover particular types of contraceptives, particularly intrauterine devices and emergency contraceptives.
Religious houses of worship were the only employers exempted from the mandate entirely. The Obama White House gave some relief to religiously affiliated hospitals and universities. In Burwell v. Hobby Lobby, the Supreme Court ruled 5-4 that it would allow “closely held” private businesses to also exclude birth control from their insurance plans if coverage would violate their religious beliefs.
These employers were asked to file paperwork with the Obama administration, and then their health insurer would step in to pay for their employees’ contraception.
But some religious groups objected to even that process, arguing that by taking an affirmative action like filing paperwork, they were tacitly endorsing the contraception that their employees would still receive. After various legal challenges over that issue, the Supreme Court asked the federal government and the mandate’s opponents to find a compromise that would suit both sides. But they failed to do so before the end of the Obama administration.
The Trump administration’s new rule, explained
The Trump administration’s regulation would allow any employer to request an exemption based on moral or religious objections. This would widen the exemption to apply to any company from a small, religiously affiliated business to a large, publicly traded company.
Universities that provide students’ health coverage are considered employers for health insurance purposes and could also seek the same exemption. Employers could cite any religious or moral reason.
The Trump administration argues that the new regulation has a wider exemption in order to protect religious liberty as well as to resolve a situation left uncertain by the Obama administration.
“The interim final rule finally provides relief to those who have been under the thumb of the federal government,” one HHS official told reporters.
The rule would also allow health insurers to refuse to cover contraception for religious or moral reasons, though the administration noted in a previous draft that it was not aware of any health insurers that have those objections. It would also allow individuals to object to participating in a health plan that covers birth control.
As the Trump administration itself noted in an earlier draft of the regulation, workers whose employers request an exemption from the mandate are no longer entitled to free birth control. They would potentially have to cover the cost themselves.
More than 20 percent of US women of childbearing age had to pay money out of pocket for oral contraceptives prior to the Obamacare mandate, according to the Kaiser Family Foundation. That shrunk to less than 4 percent a few years after the mandate took effect.
Prior to the requirement, the Trump administration estimates that more than a half-million women had health plans that did not cover contraceptives. It is unclear whether that was the result of a religious or moral objection.
If employers seek an immediate exemption from the mandate, they would be required to send a notice to their employees. If they instead choose to make the change at the start of their next plan year, employees would be notified through the usual summary of benefit changes that plans are required to provide.
The Trump administration says it is unsure about whether this might increase unintended pregnancies — but doesn’t rule out the possiblity.
“The Departments do not have sufficient data to determine the actual effect of these rules on plan participants and beneficiaries, including for costs they may incur for contraceptive coverage, nor of unintended pregnancies that may occur,” the rule states.