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November 8, 2018

Trump exempts more employers from ACA's contraceptive coverage rules

Daily Briefing

    The Trump administration on Wednesday released two final rules that will allow more employers to seek exemptions from the Affordable Care Act's (ACA) contraceptive coverage rules on moral or religious grounds, despite facing legal challenges over earlier versions of the rules.

    Background on contraceptive coverage rules

    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.

    The Trump administration in October 2017 issued interim final rules that significantly expanded exemptions available to employers that oppose the ACA's contraceptive coverage rules on religious or moral grounds. However, the American Civil Liberties Union (ACLU), California Attorney General Xavier Becerra, and others filed lawsuits against the rules. Two federal judges blocked the rules from taking effect, but a third federal judge ruled in favor of the Trump administration, according to the Post. The lawsuits are now before appeals courts.

    Trump admin finalizes less expansive exemptions

    Under the two final rules, the Trump administration is moving forward with expanding exemptions from the ACA's contraceptive coverage rules. However, the final rules are narrower in scope than those proposed in last year's interim final rules.

    Under the final rules, small businesses and individuals that morally object to offering contraception will be eligible for an exemption from the ACA's contraceptive coverage rules. However, the rules do not extend such exemptions to publicly traded businesses or government agencies, as the interim final rules did. One of the final rules focuses on religious objections to contraception, and the other focuses on nonreligious moral objections.

    HHS said the final rules, which are scheduled to take effect on Jan. 15, 2019, "leave in place government programs that provide free or subsidized contraceptive coverage to low income women, such as through community health centers."

    The department estimates "the exemptions should affect no more than approximately 200 employers with religious or moral objections" and "may affect the coverage of approximately 6,400 women."

    Final rule draws mixed response

    The final rules drew mixed reactions from conservative and liberal groups.

    Marjorie Dannenfelser, president of the Susan B. Anthony's List, an antiabortion group that holds a moral objection to certain types of birth control, praised the final rules, saying the original ACA exemptions created "repeated violations of conscience" that were "deeply contrary to the core of our nation."

    The Alliance Defending Freedom's Senior Counsel Gregory S. Baylor also praised the changes, saying, "The beliefs that inspire Christian colleges and universities, as well as groups like the Little Sisters of the Poor, to serve their communities should be protected." He added, "Through these regulations, President Trump kept his promise that people of faith wouldn't be bullied on his watch. At the same time, contraceptives will remain readily available to those who wish to use them."

    However, other groups condemned the rules. Brigitte Amiri, deputy director of the American Civil Liberties Union's Reproductive Freedom Project, said the administration's exemptions from the ACA's contraception rules are "going to rob tens of thousands or possibly hundreds of thousands of women of their benefit that they're guaranteed by law."

    Fatima Goss Graves, president of the National Women's Law Center, said, "By taking away access to no-cost birth control coverage, these rules try to give a license to virtually any employer, university, or health insurance provider to discriminate."

    Louise Melling, deputy legal director of the American Civil Liberties Union, said, "This rule will be used as a license to discriminate and represents a chilling return to the days when the government treated women's sexuality, and thus contraception, as immoral, perpetuating harmful stereotypes that have long been used to discriminate against women"(Hackman, Wall Street Journal, 11/7; Dickson, Modern Healthcare, 11/7; Goldstein, Washington Post, 11/7; AP/New York Times, 11/7; Howard, CNN, 11/7; HHS fact sheet, 11/7; Leonard, Washington Examiner, 11/07).

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