The Trump administration announced a pair of federal rules this week that carve out deep exceptions for some employers to the Affordable Care Act’s mandate that birth-control be covered by insurance. It’s a move that sets the stage for further legal action from state attorneys general and women’s health advocates who already sued the administration when the initial draft rules were announced last year.
The finalized rules allow religious groups, nonprofits and small businesses to seek exemption from the federal requirement saying they must provide birth control for employees at no cost. One of the rules allows for religious objections to coverage, while the other allows for nonreligious moral objections, as my Washington Post colleague Amy Goldstein reports. In the finalized version, the rules don’t allow governments to claim these exemptions and the moral objection rule doesn’t allow publicly traded companies to claim them. .
The rules drew praise from conservative activists when they were announced Wednesday. “Pro-life organizations should not be forced into betraying the very values they were established to advance and this rule will allow such freedom,” March for Life president Jeanne Mancini said in a statement. “We are very grateful to the Trump Administration for its work to protect such conscience rights.”
But advocacy groups said they largely mimic the draft versions that sparked legal challenges last year, and warned they could impact up to hundreds of thousands of women who currently receive free birth-control coverage.
"The bottom line is the harm from these rules has not changed, so the people and states that were concerned are still going to be concerned about it now," said Adam Sonfield, senior policy manager at the Guttmacher Institute, which advocates for women's health. "It’s pretty clear that the lawsuits will continue in some form or another. This may reset them in some ways, but the lawsuits are definitely not over.”
That ongoing legal fight could be led by some of the Democratic state attorneys general who sued the administration over the original set of exemptions.
A spokesperson for California Attorney General Xavier Becerra told me: “We’re prepared to use all legal tools possible to challenge this rule that risks a woman’s access to birth control.”
California is one of the states that sued to block the initial rules, which prompted federal judges in California and Pennsylvania to grant nationwide injunctions against them. Those cases are now pending an appeal from the Trump administration, and the injunctions remain in effect. Meanwhile, the new rules from the Trump administration won’t take effect for about two months.
For his part, Pennsylvania Attorney General Josh Shapiro told The Health 202 in a statement he was “disappointed” in the administration’s move.
“I’m disappointed that the Trump administration did not heed the direction of two federal judges and is instead trying — again — to deny women access to fundamental health care,” Shapiro said. “We’re assessing the new rules’ impact — which at first glance seem even worse than the prior rules — and I will keep fighting every day to protect women’s rights.”
Some advocacy groups are gearing up for a fight, too. “These are just as problematic as the interim final rules,” Michelle Banker, a lawyer with the National Women’s Law Center. “And we will absolutely continue to challenge them in court.”
Banker argued that like the initial ones, the new rules violate the requirement under the ACA and discriminate against women in violation of the equal protection clause of the Fifth Amendment.
Banker said the NWLC is still determining "procedurally" what any additional legal challenge might look like.
The Washington-based law center filed an amicus brief supporting California's lawsuit. NWLC, along with Americans United for Separation of Church and State and the Center for Reproductive Rights, also filed a separate suit on behalf of students at the University of Notre Dame after the school announced it would deny coverage of some contraceptives.
Despite the nationwide injunction, the university was exempt because of an agreement it made with the federal government, as my colleague Erin B. Logan reported in June. “That is in active litigation right now, and the finalization of these rules doesn’t change anything,” Banker said.
Rachel Laser, president of Americans United for Separation of Church and State, said the new rules are evidence of “another effort in the long line of the administration’s actions to undermine church-state separation and to give power to one narrow set of religious beliefs in America.”
The group also filed an amicus brief in California and plans to do so in the Pennsylvania case. “We fully expect those cases to continue, and we’ll continue to support those challenges,” Laser said.
In a release issued alongside the final rules, the Department of Health and Human Services predicted exemptions would be claimed by “no more than approximately 200 employers” and that they would affect as few as 6,400 individuals and "in no case will they impact more than 127,000 women."
But Sonfield said there was no clear way of knowing the impact because there was no way to know how many employers or universities would choose to claim an exemption.
“The administration is clearly trying to downplay the numbers,” Sonfield said. “They’re essentially looking at who has sued them already. That’s certainly one group that’s going to take advantage. But it’s certainly not the only group.”
Laser argued that “if any one woman’s access is impacted because of one employer or university’s personal or religious belief, that’s one too many.”
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AHH: Here’s a chance for members of the Republican Party who touted their commitments to coverage for preexisting conditions to prove it was not just a message during a critical campaign cycle.
House Democrats say they will hold a vote on such protections early next year, my Post colleague Erica Werner reports. Rep. Richard E. Neal (D-Mass.), set to chair the House Ways and Means Committee, signaled that such a vote would be a priority immediately after Democrats take control of the chamber in January.
It would reaffirm campaign promises even if any legislation would be stalled in the Senate, which remains under GOP control, Werner writes.
“We need a vote on preexisting conditions right away,” Neal said in an interview in his Springfield, Mass., home, writes Werner. “We said that was one of the cornerstones of the ACA. After they saw how badly their position was polling on it, they said they were for it.”
“We can’t go back and forth on these things every election cycle. Let’s establish the principle, embrace it and move on,” Neal added.
“Neal said he envisioned legislation that would affirm guaranteed coverage for preexisting conditions as settled law — and that would strike back at the lawsuit 20 Republican-led states are pursuing in federal court in Texas, with the support of the Trump administration, to declare the ACA unconstitutional,” Erica writes.
A spokesman for House Minority Leader Nancy Pelosi (D-Calif.), possibly the next House speaker, said Pelosi agreed with such a plan.
OOF: The Food and Drug Administration is set to impose severe restrictions on the sale of e-cigarette products nationwide, the latest move that signals its serious concern about the rate of youth vaping.
FDA Commissioner Scott Gottlieb will announce as soon as next week that the agency will ban the sale of most flavored e-cigarette products in tens of thousands of convenience stores and gas stations throughout the country, my Post colleague Laurie McGinley reports. The agency’s actions will impact e-cigarettes with prepackaged flavor cartridges, known as pods, that are dominating sales among young people, and “includes the wildly popular vaping products by Juul Labs.”
“Gottlieb also is expected to propose banning menthol in regular cigarettes,” McGinley writes. “The agency has been collecting public comments on such a prohibition, which is a major goal of the public health community but is likely to be strongly opposed by the cigarette industry.” The FDA will also start establishing age-verification requirements for online sales, senior agency officials told McGinley.
“The only exception to the flavored-products ban in convenience stores involves menthol e-cigarette products,” she adds. “The FDA will continue to permit sales of that flavor because menthol is permitted in regular cigarettes, and the agency doesn’t want to give traditional cigarettes an advantage over e-cigarettes. But the FDA may extend the sales restriction to menthol e-cigarettes if teen vaping doesn’t decline, officials said."
OUCH: Supreme Court Justice Ruth Bader Ginsburg was hospitalized after a fall in her office left her with three fractured ribs.
The 85-year-old returned home after her fall on Wednesday night but went to George Washington University Hospital on Thursday morning after “experiencing discomfort overnight,” according to a statement from the court, my Post colleague John Wagner writes. The statement noted that Ginsburg fractured three ribs on her left side.
“Ginsburg has persevered on the bench despite several health issues, including scares from both colon and pancreatic cancer and a heart procedure in which she received a stent in her right coronary artery,” Wagner writes. “She has also broken ribs on at least two previous occasions. In one of those episodes, in 2012, Ginsburg disclosed to a reporter that she had cracked two ribs in a fall but did not take time off because of the court’s heavy workload.
My Post colleague Sean Sullivan writes that while "there were no indications that Ginsburg’s injury was serious enough to prompt her to consider stepping down — she has lined up clerks through the 2020 term — it underscored that the more liberal members of the court are aging, and another bitter confirmation fight could happen before the end of Trump’s first term."
— Here’s another action that House Democrats can take to reaffirm their campaign promises on health-care coverage and protecting the ACA: Democratic lawmakers are weighing using some of their regained power to intervene in the Texas lawsuit that looks to overturn the health-care law, Politico’s Alice Miranda Ollstein and Adam Cancryn report.
Democrats could bring up a resolution to intervene in the lawsuit as a way to force Republicans to vote on the record about protecting Obamacare as well as its provisions protecting preexisting conditions.
“Democrats are still weighing procedural details,” Ollstein and Cancryn write. “The Trump administration has partially backed the GOP states' suit, arguing that a U.S. District Court in Texas should strike Obamacare's patient protections.”
“One option under consideration is to pass a resolution similar to the one introduced this year by Rep. Jacky Rosen authorizing the House general counsel to intervene on behalf of the chamber to defend the ACA’s constitutionality,” they add. “A second is to have the Bipartisan Legal Advisory Group — a five-member group made up of top Democratic and Republican House leaders — order the counsel to take a position on the suit.”
— Medicaid expansion had a big day on Tuesday, when voters in three states approved initiatives that would expand the program for hundreds of thousands of low-income people. But it may have had an even bigger impact on increasing the number of people who vote, the New York Times’s Margot Sanger-Katz reports.
Three recent studies suggest that “giving people coverage through expansions of the Medicaid program increases their likelihood of participating in the next election,” Margot writes. “Medicaid expansions seem to raise both voter registration and voter participation, at least temporarily.”
“We can confidently say: When you expand Medicaid eligibility, participation goes up,” one study author, Jake Haselswerdt, an assistant professor of political science at the University of Missouri, told the Times.
“It’s not clear exactly why getting Medicaid makes people more likely to vote, but there are a couple of theories,” Margot writes. “It could be that Medicaid, which has been shown to increase treatment for depression and improve financial stability, makes it easier for people to participate in the political process by giving them direct benefits. Over all, wealthier and healthier Americans tend to be more likely to vote than their poorer, sicker counterparts. Perhaps enrollment in the program simply connected people with information about registration and voting, as it brought them into contact with government websites and case workers.”
She also noted that because voting is private, the research did not indicate whether the new Medicaid voters supported either Democrats or Republicans.
— And here are a few more good reads from The Post and beyond:
- The American Medical Association holds its research symposium.
Veterans heading to Congress follow a big legacy