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June 1, 2017

Trump admin to allow broad exemptions to ACA contraceptive coverage rule, according to leaked draft

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    The Trump administration is seeking to drastically broaden exemptions available for the Affordable Care Act's (ACA) contraceptive coverage rules, according to a leaked draft regulation, Vox reports.

    How did women's health change in 2016?

    The White House Office of Management and Budget (OMB) currently is reviewing an interim final rule that would ease the law's contraceptive coverage requirements. Vox obtained and published a copy of the regulation, which is dated May 23, though it is not yet clear if the administration made any changes to the version OMB is reviewing.  

    According to Vox, spokespeople for HHS, the Department of Labor, and the Department of the Treasury, which hold jurisdiction over the rule, did not respond to requests for comment on Tuesday. A White House spokesperson also did not respond to a request for comment, Vox reports.

    Draft regulation details

    According to Vox, the draft regulation would drastically expand the type of employers that can seek an exemption to the contraceptive coverage rules by allowing any employer to request a moral or religious exemption from the requirements, including universities that offer health insurance.

    The draft regulation would not require employers to notify the federal government that they are claiming an exemption, but they would have to inform employees of any changes in benefits and clearly state in health plan documents that they no longer provide contraceptive coverage.

    In addition, the draft regulation would allow:

    • Individuals to opt out of enrolling in a health plan that covers contraception; and
    • Insurers to refuse to cover contraceptives for religious or moral reasons.

    The administration in the draft regulation said it did not know of any insurers that would choose not to cover contraceptives because of religious or moral objections.

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    The Trump administration in the draft rule said it is broadening the exemption to protect religious liberty and because the former President Barack Obama's administration did not resolve issues regarding the contraceptive coverage requirements. "Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the health care market," the draft regulation states.

    The interim final rule could take effect as soon as it is published in the Federal Register. However, federal agencies typically solicit public comments on interim final rules and can revise such measures based on the feedback.


    Some industry stakeholders and religious groups praised the draft regulation, while women's rights and health care groups criticized the draft measure.

    Melanie Israel, a research associate at The Heritage Foundation, said, "Making this as broad as possible for people who do want exemptions is a good thing in our book," adding, "I imagine there would be a great sense of relief" for employers that have desired an exemption from the contraceptive coverage requirements.

    Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty who has represented groups that challenged the ACA's contraceptive coverage rules in court, called the proposal "sensible, fair, and in keeping with the Supreme Court's order and the president's promise to ... religious groups serving the poor."

    Maureen Ferguson, a senior policy adviser with the Catholic Association, said while she thinks "very few employers will take advantage" of the exemptions, they would benefit companies with strongly held religious beliefs.

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    However, Kaylie Hanson Long, communications director for NARAL Pro-Choice America, in a statement said the proposal would amount to an "attack" on "the single greatest advancement in reproductive health care in a generation."

    Gretchen Borchelt, vice president for reproductive rights and health at the National Women's Law Center, said the organization likely would challenge the draft regulation in court if it becomes final. She said the proposal would violate the federal Administrative Procedure Act because it "is arbitrary and capricious," and would present constitutional questions of equal protection because the Trump administration is "just attacking birth control coverage, which is a service that only women use."

    Likewise, Brigitte Amiri, a staff attorney with the American Civil Liberties Union's Reproductive Freedom Project, said the group thinks the draft regulation is "unconstitutional, both in terms of separation of church and state and discrimination against women." She added that the group "will be bringing a lawsuit" if the draft regulation takes effect as written (Scott/Kliff, Vox, 5/31; Eilperin, Washington Post, 5/31; Hellman, The Hill, 5/31; Wolf, USA Today, 5/31).

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