May 30, 2017

Trump admin readies rule to scale back ACA's contraceptive coverage mandate

Daily Briefing

    The Trump administration has drafted an interim final rule that would scale back contraceptive coverage rules implemented under the Affordable Care Act (ACA).

    How did women's health change in 2016?

    Background

    The ACA's contraceptive coverage rules require most employers to offer contraceptive coverage to their workers. Houses of worship are exempt from the requirement, and not-for-profits that hold themselves out as religious are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees.

    Some not-for-profits that hold themselves out as religious and oppose contraception have challenged the accommodation in federal courts throughout the United States. Most appeals courts dismissed the challenges. Some of those cases were appealed to the Supreme Court, which in May 2016 sent the cases back to lower courts to reconsider the issue.

    President Trump earlier this month signed a "religious freedom" executive order that, among other things, directed HHS to re-examine how it interprets the ACA's preventive services mandate. The order directed the HHS secretary to "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive care mandate promulgated under" the ACA. The order specifically referred to preventive care and services for women. 

    Latest developments

    According to the New York Times, the White House Office of Management and Budget (OMB) on its website said it is reviewing an interim final rule that would ease the contraceptive coverage requirements. An OMB official declined a request from the Times to discuss the measure but acknowledged that it was under review.

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

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    Reaction

    Mark Rienzi, a lawyer at the Becket Fund for Religious Liberty who has represented groups that challenged the ACA's contraceptive coverage rules in court, said the new measure could go a long way toward addressing his clients' concerns. However, he said his clients will continue to pursue legal action against the ACA's contraceptive coverage rules to ensure that the government could not impose similar requirements in the future.

    According to the Times, Democratic lawmakers and women's rights organizations likely will oppose the interim final rule.

    A group of 14 Senate Democrats on Thursday sent a letter to OMB Director Mick Mulvaney expressing their opposition to changes that would roll back the contraceptive coverage rules. The senators urged Mulvaney to cease efforts that could "undermine access to affordable preventive services, including contraception, for women," adding that such services are "a critical part of women's health care."

    Separately, Gretchen Borchelt, a vice president at the National Women's Law Center, said her organization is preparing a lawsuit to challenge the expected changes. Borchelt said she did not know the specifics of the interim final rule, but that the organization expects that the measure "will allow an employer's religious beliefs to keep birth control away from women" (Pear, New York Times, 5/29; Sullivan, The Hill, 5/26).

    How did women's health change in 2016?

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