The Trump administration issued a rule Friday that sharply limits the Affordable Care Act’s contraception coverage mandate, a move that could mean many American women would no longer have access to birth control free of charge.
The new regulation, issued by the Health and Human Services Department, allows a much broader group of employers and insurers to exempt themselves from covering contraceptives such as birth control pills on religious or moral grounds. The decision, anticipated from the Trump administration for months, is the latest twist in a seesawing legal and ideological fight that has surrounded this aspect of the 2010 health-care law nearly from the start.
Several religious groups, which battled the Obama administration for years over the controversial requirement, welcomed the action.
Women’s rights organizations and some medical professionals portrayed it as a blow to women’s health, warning that it could lead to a higher number of unintended pregnancies.
The rule change is among the recent moves by President Trump to dismantle initiatives enacted under the Obama administration. It fulfills a crucial promise Trump made as a candidate to appeal to social conservatives and that he repeated in May when he signed an executive order in the Rose Garden to expand religious liberty.
Senior Health and Human Services officials, briefing reporters early on condition of anonymity, contended the change will still leave “99.9 percent of women” with access to free birth control through their insurance. They said the estimate was based on the finite number of groups that have filed about 50 lawsuits over the provision.
This latest rewriting of the federal policy, in an interim final rule that takes effect immediately, broadens the entities that may claim religious objections to providing contraceptive coverage to nonprofit organizations and for-profit companies, even ones that are publicly traded. Also included are higher educational institutions that arrange for insurance for their students, as well as individuals whose employers are willing to provide health plans consistent with their beliefs.
A separate section covers moral objections, allowing exemptions under similar circumstances except for publicly traded companies.
As part of the rule, made publicly available in the Federal Register late Friday morning, administration officials estimate that 120,000 women at most will lose access to free contraceptives — many fewer than critics predict.
They write that they do not know how many employers or insurers that omitted contraceptive coverage before the ACA did so based on religious beliefs that would now allow them to be exempt. For that reason, the law says, HHS cannot predict how many entities will want exemptions, other than the groups that have filed recent lawsuits or made other public statements against the Obama-era policy.
The analysis concludes that perhaps one-third of women who get insurance through such groups — the estimated 120,000 — would end up paying for birth control on their own.
The new policy “will result in some persons covered in plans of newly exempt entities not receiving coverage or payments for contraceptive services,” the rule acknowledges. But it says there is not “sufficient data to determine the actual effect . . . on plan participants and beneficiaries, including for costs they may incur for contraceptive coverage, nor of unintended pregnancies that may occur.”
The controversy first arose as part of the Obama administration’s initial definition of preventive care that insurers must cover under the ACA — which encompassed birth control, officials decided.
Subsequent accommodations gave exemptions of sorts to houses of worship, nonprofits with religious affiliations and closely held for-profit companies. Such employers have been able to opt out of providing the coverage and instead have their insurance company pay for it by notifying the insurer, a third-party administrator or the federal government. That situation will continue.
Organizations affiliated with the Catholic Church, which teaches against birth control other than by natural means, have been among the most vocal opponents. They’ve argued that having to cover the cost of contraception through health insurance plans is tantamount to being forced by the government to be complicit in a sin.
In the past several years, lawsuits have been filed by nuns, Catholic charities, hospitals and universities. Even now, litigation remains in several federal appeals courts.
One challenge was heard by the Supreme Court, and the justices ruled in 2014 that it was illegal to impose the mandate on “closely held corporations” such as Hobby Lobby, the craft store chain. Its Christian owners had objected to the idea of paying for several kinds of the birth control that must be covered.
Despite HHS’s officials 99.9 percent prediction, no one knows how many companies and institutions will now claim an exemption and, in turn, how many women will lose access to no-cost birth control.
The new rule is almost certain to spark fresh litigation. The National Women’s Law Center — which estimates that in 2013 alone, the contraception requirement saved women $1.4 billion in oral contraceptive costs — has vowed to challenge the Trump administration in court. It plans to argue that the new policy amounts to sex discrimination, since it will disproportionately affect women. It also plans to allege religious discrimination, arguing that it will allow employers to impose their religious beliefs on employees.
“The Trump administration is treating birth control as if it’s not even health care. We see this as part of the larger war they are waging on women’s health,” said Mara Gandal-Powers, senior counsel at the National Women’s Law Center. “For some [women], it means choosing between preventive care like contraceptives and paying their rent, their mortgage, electric bill.”
Other groups focused on a different issue, with Anne Davis of Physicians for Reproductive Health arguing that the widened exemptions will leave many women “vulnerable to the whim of their employers. … An employer’s beliefs have no place in these private decisions, just as they would not in any other conversation about a patient’s health care.”
The rule follows some social conservatives’ increasing frustration with the pace at which the Trump administration has addressed their demands on issues such as the ACA contraception requirement. “An awful lot of people who voted for this president did so believing this was going to be something he would solve,” said Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, who hailed the rule as a correction of overly aggressive liberal actions under President Barack Obama. “There are other ways to get contraceptives. You don’t need to force nuns to give people contraception.”
In his sweeping May 4 executive order on free speech and religious liberty, Trump directed his Cabinet to address the concerns of those who had “conscience-based objections” to contraceptive coverage.
In previewing the rule for reporters, Roger Severino, director of HHS’s office for civil rights and a longtime proponent of religious liberties, reiterated Trump’s May pledge from the Rose Garden. The president had promised that “we will not allow people of faith to be targeted, bullied or silenced any more . . . We are ending the attacks on religious liberties.”
On Friday, Severino elaborated: “That was a promise made, and this is the promise kept. … We should have space for organizations to live out their religious identity and not face discrimination because of their faith.”
The HHS regulation was not the only administration action along these lines to be announced on Friday. Minutes later, Attorney General Jeff Sessions issued sweeping guidance to all executive departments and agencies on the Justice Department’s interpretation of religious liberties. That also triggered an immediate backlash, with civil liberties groups asserting that he was essentially offering a license for discrimination.
Senior Justice Department officials said the guidance was merely meant to offer interpretation and clarification of existing law. But the interpretation seemed to be particularly favorable to religious entities, possibly at the expense of women, LGBT people and others.
The guidance, for example, said the ACA contraceptive mandate “substantially burdens” employers’ free practice of religion by requiring them to provide insurance coverage for contraceptive drugs in violation of their religious of beliefs or face significant fines.
Over the summer, a leaked early draft of the regulation began circulating in Washington, priming both sides for a renewed fight. That draft immediately drew praise from one side and condemnation from the other.
When the contraception mandate was first implemented in August 2012, it required all health insurance offered by employers to cover at least one of the 18 forms of birth control approved by the Food and Drug Administration. Since then, savings on the birth control pill have accounted for more than half of the drop in all out-of-pocket prescription drug spending, according to the Kaiser Family Foundation.