Trump Rule Could Deny Birth Control Coverage to Hundreds of Thousands of Women
The Trump administration has drafted a sweeping revision of the government’s contraception coverage mandate that could deny birth control benefits to hundreds of thousands of women who now receive them at no cost under the Affordable Care Act.
The new rule, which could go into effect as soon as it is published in the Federal Register, greatly expands the number of employers and insurers that could qualify for exemptions from the mandate by claiming a moral or religious objection, including for-profit, publicly traded corporations. A 34,000-word explanation of the intended policy change is blunt about its likely impact on women: “These interim final rules will result in some enrollees in plans of exempt entities not receiving coverage or payments for contraceptive services.”
The architects of the Affordable Care Act intended to broadly expand access to contraception by making it a regular benefit of health insurance, and the Obama administration’s goal was to guarantee birth control for as many women as possible. More than 55 million women have birth control coverage without out-of-pocket costs, according to a study commissioned by the Obama administration and cited in the draft rule.
By spring 2014, two-thirds of women using birth control pills and nearly 75 percent of women using the contraceptive ring were no longer paying out-of-pocket costs. In 2013 alone, the mandate had saved women $1.4 billion on birth control pills, according to the National Women’s Law Center.
But a series of lawsuits filed over the last five years by priests, nuns, charitable organizations, hospitals, advocacy groups and colleges and universities convinced Trump administration officials that a change was needed. The new rule, drafted mainly by political appointees at the White House and the Health and Human Services Department, seeks “to better balance the interests” of women with those of employers and insurers that have conscientious objections to providing or facilitating access to contraceptives.
“The government does not have a compelling interest in applying the mandate to employers that object” or in foisting coverage on individuals who object, the draft rule states.
Career government employees at the Health and Human Services Department and other agencies do not expect to block the new rule but — in an expedited internal review — they are trying to tone down language that questions the value of contraception.
The Obama administration and the National Academy of Sciences cited studies showing that as the use of contraceptives has gone up, the rate of unintended pregnancies has come down. But the Trump administration says “these studies are insufficient to demonstrate a causal link.”
Instead, the rule emphasized another issue: “as contraception became available and its use increased, teen sexual activity outside of marriage likewise increased.”
In any event, the Trump administration says, the coverage of contraceptives is required not by the Affordable Care Act itself, but by federal guidelines issued under the law, and the law “does not require that the guidelines be ‘evidence-based’ or ‘evidence-informed.’ ”
The draft rule is still under review by the administration. But as its details became known this week, the administration sped up efforts to clear it for publication before opponents could gain traction. The House Democratic leader, Nancy Pelosi of California, called it a “sickening plan to roll back women’s access to contraception.”
When President Trump ordered his cabinet to consider rule changes to address “conscience-based objections to the preventive-care mandate” on May 4, he said he was coming to the rescue of the Little Sisters of the Poor, a 178-year-old religious order that had refused to help provide contraceptive coverage.
But the draft rule goes far beyond that.
The Obama administration offered an exemption to houses of worship and a more limited “accommodation” to certain employers who had religious objections to providing or paying for contraceptive coverage. The Trump administration would offer exemptions to employers that object based on either religious beliefs or sincerely held “moral convictions.”
Most lawsuits attacking the mandate assert that it violates a 1993 law protecting religious liberty. The Trump administration acknowledges that the law, the Religious Freedom Restoration Act, “does not provide protection for nonreligious, moral conscientious objections.”
But, it said, Congress and the courts have long recognized the importance of respecting moral convictions as well as religious beliefs, in health care and other fields, and as an example it cited the exemption from military service available to certain “conscientious objectors.” And it noted that an early version of the First Amendment, proposed by James Madison, protected not only freedom of religion, but also “the full and equal rights of conscience.”
In 2014, the Supreme Court struck down the contraceptive coverage mandate “as applied to closely held corporations” like Hobby Lobby, a for-profit chain of craft stores owned by members of a Christian family who object to certain methods of contraception on religious grounds.
The Supreme Court did not decide whether the religious freedom law applied to publicly traded, for-profit corporations. But the Trump administration says such companies should have the same protections.
The draft rule would make the exemption available to for-profit as well as nonprofit entities, regardless of whether they are closely held or publicly traded. The legal concept of a closely held company “is not well-defined or universally-accepted” and is “too imprecise” to be used in the birth control rule, the Trump administration says.
For that reason, the administration says, it will “exempt any entity possessing religious beliefs or moral convictions against the coverage required by the mandate, regardless of its corporate structure or ownership interests.”
The draft rule would also create an exemption for health insurance companies that have religious or moral objections to covering birth control. It would change the current accommodation for certain religiously affiliated employers from mandatory to optional. And it would allow insurers and employers to provide a separate insurance policy excluding coverage of contraceptives to individuals who have religious or moral objections.
The Trump administration discounts the possibility of harm to women, saying they can obtain access to contraceptives through a family member’s health plan, a plan sold on a public insurance exchange or “multiple other federal programs that provide free or subsidized contraceptives.”
The draft rule provides not just a handful of talking points, but a detailed analysis of the relevant law and policy, in anticipation of a legal fight with women’s rights advocates.
Under pressure from religious objectors, the Obama administration repeatedly revised its birth control rules, and the Trump administration cites these changes to show that the government has broad discretion to decide who is exempt from the mandate.
Federal law generally requires agencies to issue new rules as proposals, with an opportunity for public comment, but the new rule is labeled an interim final rule, meaning it could take effect immediately on publication in the Federal Register. Objecting employers urgently need relief, the administration said, and “it would be impracticable and contrary to the public interest to engage in full notice-and-comment rule-making.”
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