The Trump administration issued rules Friday that immediately carve broad exceptions to the Affordable Care Act's promise of no-cost contraceptive coverage, touching off fresh lawsuits and renewed debate about the proper scope of religious liberty.
The rules significantly widen the range of employers and insurers that can invoke religious or moral beliefs to avoid the ACA requirement that birth control pills and other contraceptives be covered by insurance as part of preventive care. Administration officials and their allies on the right downplayed the impact of the change on American women, while women's rights and civil liberties groups portrayed it as a massive, discriminatory act.
The rules, among the president’s many moves to dismantle Obama-era initiatives, fulfill a pledge that he made as a candidate to appeal to social conservatives and that he amplified this spring through an executive order to expand religious liberty. Loosening the contraception mandate is the administration’s most concrete manifestation of that pledge.
It also 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.
Capitol Hill reacted quickly Friday. House Speaker Paul D. Ryan (R-Wis.) termed Friday “a landmark day for religious liberty,” while Rep. Nita M. Lowey (D-N.Y.) decried the move. “This isn’t ‘The Handmaid’s Tale,’” she said, referring to the popular book and Hulu series about an authoritarian state that controls how women conceive and bear children.
This rewrite of the federal policy, in interim final rules from the Health and Human Services Department, broadens the entities that may claim religious objections to providing contraceptive coverage. They now encompass nonprofit organizations and for-profit companies, including 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 HHS rule covers moral objections, allowing exemptions under similar circumstances except for publicly traded companies.
Several religious organizations, which battled the Obama administration for years over the ACA’s requirement, lauded the action. Jeremy Dys, deputy general counsel for a conservative, Texas-based legal group First Liberty, said whether his clients — which include colleges, retirement homes and religious teaching ministries — choose to cover birth control or drugs causing abortion “is now a matter between them and their God, not them and the government.”
A raft of left-leaning groups and a few Democratic attorneys general swiftly announced plans to try to block the policy change in the courts. On Friday afternoon, California Attorney General Xavier Becerra and the American Civil Liberties Union both filed complaints in the U.S. District Court for the Northern District of California. The two suits allege the rules violate the First Amendment by favoring certain religious views, discriminate against women and were issued without following correct government procedures. California’s also claims the rules will harm the state, by leaving “millions of women” without access to birth control and thus increasing contraceptive costs to state-funded programs.
Other administration opponents warned that unintended pregnancies will increase. And Anne Davis, consulting medical director for Physicians for Reproductive Health, said the expanded exemptions leave women “vulnerable to the whims of their employers,” which, she said, “have no place in these private decisions, just as they would not in any other conversations about a patient’s health care.”
Asked about the swell of criticism, White House press secretary Sarah Huckabee Sanders replied: “The president believes that the freedom to practice one’s faith is a fundamental right in this country . . . This is a president who supports the First Amendment, supports the freedom of religion — I don’t understand why that should be an issue.”
The HHS rules were part of choreographed moves by the administration. Minutes after the pair of ACA regulations appeared late morning in the Federal Register, Attorney General Jeff Sessions issued sweeping guidance to all executive departments and agencies on the Justice Department’s interpretation of religious liberties. Senior Justice Department officials said the guidance interpreted and clarified existing law.
But the interpretation also triggered a backlash from civil liberties groups, which maintained that it essentially offers a license for discrimination.
In two separate briefings for reporters, senior Health and Human Services officials 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 number of groups that have filed lawsuits over the provision.
In one section of the religion rule, administration officials predict 120,000 women at most will lose access to free contraceptives through the combined rules — many fewer than critics anticipate.
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 rule 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 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 after the Obama administration decided birth control was part of the preventive care that insurers must cover under the ACA. When that mandate was initially 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.
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.
The Justice Department on Friday moved to dismiss several lawsuits, pending in appeals courts, brought in recent years by conservatives opposed to the Obama administration’s policy. It is not entirely clear, however, what will happen to them or others among the more than 50 court cases across the country.
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. “We will not allow people of faith to be targeted, bullied or silenced any more,” the president promised. “We are ending the attacks on religious liberties.”
Roger Severino, director of HHS’s office for civil rights and a longtime proponent of religious liberties, noted that Rose Garden directive on Friday. “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,” Severino said.
Matt Zapotosky contributed to this report.