The Trump administration has drafted a regulation that would dramatically scale back the federal mandate that employers provide free birth control coverage, by providing an exemption to anyone who raises religious or moral objections.
The proposal, which drew praise Wednesday from many religious and conservative activists and criticism by several women’s and reproductive rights groups, could affect hundreds of thousands of women who now receive free contraceptive coverage under the 2010 Affordable Care Act.
The draft rule, which is dated May 23 and is pending at the Office of Management and Budget, goes much further than current ACA provisions that exempt houses of worship and provide a form of accommodation for religiously affiliated nonprofits and closely held for-profit companies. Under the accommodation, these employers can 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.
But many religious groups and charities have argued that the Obama-era rule still violates their principles because it facilitates birth control. The draft regulation, first reported by Vox, would “provide exemptions for entities and individuals with both moral and religious objections to contraceptives.”
These “expanded exemptions,” in the words of the leaked proposal, could apply to any entity that opposes providing birth control to employees, including universities and major corporations. The revised rule would preserve the current accommodation, which has been invoked by roughly 10 percent of all nonprofits with 5,000 or more employees.
Marjorie Dannenfelser, president of the antiabortion Susan B. Anthony List, said in a statement that these changes, if finalized as written, would mark “an important step in acknowledging the importance of conscience rights for all Americans.”
“No one, including religious orders like the Little Sisters of the Poor or groups like Susan B. Anthony List, should be forced to be complicit in the provision of abortion-inducing drugs and devices,” she added.
“Better late than never,” Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, said in a statement. The group successfully challenged the contraception mandate on behalf of the crafts-store chain Hobby Lobby, a case decided by the Supreme Court in 2014.
“At long last the United States government acknowledges that people can get contraceptives without forcing nuns to provide them. That is sensible, fair, and in keeping with the Supreme Court’s order and the president’s promise to the Little Sisters and other religious groups serving the poor.”
Yet Kaylie Hanson Long, communications director for NARAL Pro-Choice America, said in a statement that the revision would amount to an “attack” on “the single greatest advancement in reproductive health care in a generation.”
Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, said the organization will probably challenge the draft regulation in court. The new rulemaking would violate the Administrative Procedure Act because it “is arbitrary and capricious,” Borchelt argued, and would raise constitutional questions of equal protection because “they are just attacking birth control coverage, which is a service that only women use.”
The Center for Reproductive Rights has also threatened to sue over the regulation.
Alleigh Marrem, a spokeswoman for the Department of Health and Human Services, declined to comment on the proposal, which still could be altered. “We do not comment on alleged drafts of documents,” she said in an email.
The push to rewrite the rule stems from an executive order on religious liberty that President Trump signed May 4, which instructed the Health and Human Services, Treasury, and Labor departments to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate” outlined in the ACA.
The requirement to cover at least one form of the 18 birth-control methods approved by the Food and Drug Administration is among the preventive-care benefits that women receive free under the law. Contraceptives account for between 30 and 44 percent of women’s out-of-pocket health-care spending, according to the Kaiser Family Foundation, and savings on the oral contraceptive pill accounted for more than half of the drop in all out-of-pocket prescription drug spending since the ACA was implemented.
Maureen Ferguson, senior policy adviser with the Catholic Association, predicted Wednesday that “very few employers will take advantage of these conscience protections,” but they make sense for those with strongly held religious views.
“If you go to work for nuns, you’re not going to expect contraception coverage in your health care.”