October 9, 2017

Trump admin scales back contraceptive coverage rules

Daily Briefing

    The Trump administration on Friday issued interim final rules that will significantly expand exemptions available to employers that oppose the Affordable Care Act's (ACA) contraceptive coverage rules. 

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    The rules were released on an interim basis, the Washington Post reports, but they are scheduled to take effect immediately.

    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.

    In May, President Trump signed a "religious freedom" executive order that, among other provisions, directed HHS to re-examine how it interprets the ACA's preventive services mandate, including services for women. Later that same month, the Trump administration drafted an interim final rule to scale back the ACA's contraceptive coverage rules.

    Expanded exemptions

    The Trump administration on Friday released two interim final rules to expand the exemptions. One rule offers an exemption to any employer or insurer that opposes contraceptive coverage "based on its sincerely held religious beliefs." The other creates a new exemption for employers that have "moral convictions" against covering contraceptives.

    According to the Times, the rules mean that for-profit companies can claim an exemption, regardless of whether they're "closely held." The exemptions are also available to colleges and universities that offer health insurance to both staff and students, Vox reports.

    To claim an exemption, employers "do not need to file notices or certifications" with the government, according to the new rules. However, employers that want to make the change immediately must notify their employees, while those that wish to make the change at the start of the next plan year could do so in the usual summary of benefits.  

    The Trump administration said the rules will go into effective immediately because "it would be impracticable and contrary to the public interest to engage in full notice and comment rulemaking." Nonetheless, the administration will take public comments.

    On Friday, HHS officials in a press conference said "99.9 percent of women" would likely remain unaffected by the new rules, noting that relatively few small businesses have challenged the former coverage policy.

    Overall, the administration projected that about 120,000 women would lose access to no-cost contraceptive coverage—an estimate that differs sharply from the higher numbers projected by critics of the change, the Post reports.

    The administration in the rules stated, "These final rules will result in some persons covered in plans of newly exempt entities not receiving coverage or payments for contraceptive services." However, the administration said there are 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."

    Administration's comments

    In the new rules, the Trump administration said the regulations aim "to bring to a close the more than five years of litigation" over the contraceptive coverage rules.

    Specifically, the Trump administration wrote that "it is necessary and appropriate to provide the expanded exemptions" because it is otherwise impossible to satisfy all of the religious objections to the rules. Further, the Trump administration said the contraceptive coverage requirement imposes a "substantial burden on the religious beliefs of individual employees who oppose contraceptive coverage."

    The Trump administration in the rules also countered the Obama administration's determination that the contraceptive coverage requirement was necessary because the government had a compelling interest in protecting women's health. The Trump administration stated, "Application of the mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest."

    Changes garner praise from conservative groups

    Several conservative groups praised the changes. For instance, Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, said, "An awful lot of people who voted for this president did so believing this was going to be something he would solve," adding, "There are other ways to get contraceptives. You don't need to force nuns to give people contraception."

    Marjorie Dannenfelser, president of the Susan B. Anthony List, added, "Today President Trump delivered a huge victory for conscience rights and religious liberty in America." She continued, "No longer will Catholic nuns who care for the elderly poor be forced by the government to provide abortion-inducing drugs in their health care plans. Not only that, moral objectors such as the Susan B. Anthony List will also no longer have to pay for life-ending drugs that are antithetical to their mission and for which we have argued there is certainly no 'compelling state interest.'"

    Critics voice concerns, file lawsuits

    However, many doctors contend that access to contraceptives has improved women's health, Vox reports, and several women's health groups have challenged or pledged to challenge the rules.   

    For instance, the American Civil Liberties Union (ACLU) on Friday filed a lawsuit against the rules on behalf of ACLU employees and Service Employee International Union-United Health Care Workers West. In the lawsuit, ACLU argues that the rules violate the Constitution's establishment clause and equal protection clause by "authorizing and promoting religiously motivated and other discrimination against women seeking reproductive health."

    Brigitte Amiri, senior staff attorney at ACLU, said, "We will challenge both rules as being blatantly unconstitutional. They both violate the separation of church and state and also discriminate against women by allowing employers to withhold a benefit that is guaranteed by law."

    Separately, California Attorney General Xavier Becerra (D) on Friday filed a lawsuit against the rules, stating, "[President] Trump wants businesses and corporations to control family planning decisions rather than a woman in consultation with her doctor. These anti-women's health regulations prove once again that the Trump administration is willing to trample on people's rights."

    According to The Hill, Massachusetts Attorney General Maura Healey (D) on Friday similarly said she would file suit against the rules, as did the Center for Reproductive Rights, Americans United for Separation of Church and State, and the National Women's Law Center

    Meanwhile, Haywood Brown, president of the American College of Obstetricians and Gynecologists, said the rules would reverse gains in women's health. "Affordable contraception for women saves lives," Brown said. "It prevents pregnancies. It improves maternal mortality. It prevents adolescent pregnancies."

    Anne Davis of Physicians for Reproductive Health added that the new exemptions will make 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" (Kliff/Scott, Vox, 10/6; Pear, New York Times, 10/5; Goldstein  et al., Washington Post, 10/6; Baker, Axios, 10/6; Susan B. Anthony List press release, 10/6; Hellmann, The Hill, 10/6; Manchester, The Hill, 10/6).

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