The Trump administration issued a pair of federal rules on Wednesday that allow some employers to deny insurance coverage of birth control on religious or moral grounds, plowing ahead despite a legal and ideological tempest.
The rules notch a deep exception to a federal requirement under the Obama-era interpretation of the Affordable Care Act that essential health benefits must include coverage of contraception at no charge to consumers.
The circumvention of this mandate, first proposed by Trump health officials a year ago, is part of the administration’s alliance with social conservatives for whom “religious liberty” has become a central cause and who had objected to the contraceptive mandate.
The draft rules drew vehement protests from civil liberties and women’s rights advocates, along with Democrats in Congress and in state attorneys general offices.
Two lawsuits by attorneys general prompted federal judges in California and Pennsylvania to grant nationwide injunctions against the proposals, while the administration has prevailed in another case. They now are all before appellate courts.
The administration issued its final versions of the rules, to take effect in slightly more than two months, while the legal disputes are playing out.
In a statement accompanying the rules’ final version, Health and Human Services officials said on Wednesday that the Affordable Care Act does not contain a contraception requirement and that the law does “not require the government to violate religious or moral objections to providing or purchasing such coverage.”
One rule is for religious objections and the other for nonreligious moral convictions. In their final form, they do not allow publicly traded companies or governments to claim such exemptions.
The Centers for Medicare and Medicaid Services, the branch of HHS that oversees much of the ACA, proposed a new rule on Wednesday that is similar in spirit, requiring a greater separation of billing in ACA health plans for the part of coverage relating to abortion services that cannot be paid for with federal money.
HHS officials downplayed the impact of the contraceptive rules, as they did when first proposing the idea. They predicted that the exemptions will be invoked by “no more than approximately 200 employers” and affect the coverage of birth control for perhaps 6,400 women.
Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, predicted, however, that the new policy “is going to rob tens of thousands or possibly hundreds of thousands of women of their benefit that they’re guaranteed by law.” The ACLU has supported the two lawsuits challenging the rules.
The judges in both lawsuits found that the draft rules were defective because they did not allow properly for the public to comment on them. In the Pennsylvania case, U.S. District Judge Wendy Beetlestone said that the plaintiffs had a strong case because the proposed exceptions to birth control coverage were of “remarkable breadth” and contradicted the ACA.