The exact details of the exemptions, and when they would take effect, remain unclear. But women’s health advocates are bracing for a legal fight. They expect the rules to mimic earlier regulations enacted by the Trump administration last year before being blocked by federal judges.
The rules allowed nearly any employer — nonprofit or for-profit — with a religious or moral objection to opt out of the Affordable Care Act provision requiring the coverage of contraception at no cost for the employee. The rules vastly expanded which companies could be exempt from the mandate and why, including a broad exemption for a “sincerely held moral conviction” not based in any particular religious belief. Perhaps most significantly, it required employers to provide no other accommodations for employees seeking birth control coverage.
The Trump administration rules were “nothing short of radical,” American Civil Liberties Union Deputy Legal Director Louise Melling said in a phone call Thursday with reporters. “There’s no backstop to ensure coverage for employees.”
The number of companies that would opt for such exemptions is unclear. An employee’s coverage would depend largely on the employer’s insurance plan, as well as the state’s laws. Thirty states and the District of Columbia require insurance plans to cover contraceptives to some extent, with certain exemptions, according to the Kaiser Family Foundation. But state laws in those places do not have authority over all plans. Meanwhile, 20 states have no contraception requirements for insurance plans.
The birth control rules are part of a broader effort by conservatives inside and outside of the White House to prioritize what they call religious liberty. It also comes in the midst of an ongoing court battle.
Before President Trump took office, the Obama administration was facing scores of lawsuits from organizations, such as Hobby Lobby, arguing that the free-contraception mandate violated their religious beliefs. The mandate required employers to cover the full range of contraceptive services approved by the Food and Drug Administration, including emergency contraception and IUDs, without cost-sharing.
After a Supreme Court decision in the Hobby Lobby case, the Obama administration allowed religiously affiliated nonprofits and certain private, for-profit corporations to opt out of the coverage, as long as their employees were provided with an accommodation. The accommodations allowed for affected women to still get the coverage they needed for birth control, but the company’s insurer would pay, not the company itself.
Then, in October 2017, the Trump administration issued its directive significantly expanding those exemptions. “It drives a Mack truck” through the Obama-era rules, said Mara Gandal-Powers, director of birth control access and senior counsel for the National Women’s Law Center. “We’re really concerned about how far it goes.”
Several states and advocacy groups quickly sued, arguing in part that the Department of Health and Human Services enacted its rules without the notice and comment period required by federal law.
In December 2017, federal judges in California and Pennsylvania issued preliminary injunctions blocking the rules from taking effect. The Trump administration appealed both injunctions, and the cases are ongoing; a hearing in the California case is scheduled Friday.
Now, a year after the first attempt to pass the controversial exemptions, the Trump administration appears to be trying again.
“It’s hard for me to imagine them stepping back from those much,” said Gandal-Powers, who has been checking the Federal Register multiple times a day, awaiting the rule.
Advocates believe the new rules will be released any day now, said Robert Boston, a senior adviser for Americans United for Separation of Church and State. “This administration can’t expect to deny women access to critical health care without facing legal challenges — and we’ll be front and center.”
A spokeswoman for the Department of Health and Human Services declined to provide any updates or timeline on the rules. Jeff Wu, a health insurance specialist at HHS, said only that the rules have been sent to the Office of Management and Budget for interagency review, “which tends to happen in late stages.”
Melling, of the ACLU, predicted the Trump administration would try to argue that its rules should stand now that they have undergone a comment period. But she said other arguments in the ongoing lawsuits would still apply.
California Attorney General Xavier Becerra, for example, has argued that the birth control regulations would violate the First Amendment by allowing employers to use religious beliefs as a right to discriminate against employees in denying them a health benefit federally entitled to them in the Affordable Care Act. Becerra also argued the rules violate the Equal Protection Clause of the Fifth Amendment by specifically targeting and harming women.
The attorney general claims the regulations could cause millions of women in California to lose access to contraceptives, forcing the state to shoulder the burden.
One of the groups appealing the injunction in California is the Little Sisters of the Poor, a 179-year-old religious order that refused to comply with the Obama administration’s contraceptive coverage mandate. The group took the fight to the Supreme Court, which ultimately sent the decision back to the lower courts.
Lori Windham, a lawyer at the Becket Fund for Religious Liberty who represents the Little Sisters, said the legal team doesn’t know what will be in the Trump administration’s final rules, but they are hopeful they will continue to protect religious ministries like the Little Sisters.
“We hope that the courts will dismiss these politically motivated cases and ensure that the Little Sisters are free to serve without the threat of fines,” Windham said.
Windham argued that states such as California have not been able to identify anyone who would lose contraceptive coverage, and said women would still have many options available. HHS has claimed that the rules issued last year will not affect more than 99.9 percent of women across the United States.
But women’s health advocates argue that access to safe contraceptives is essential in preventing unintended pregnancies, and has contributed to a decline in teenage births and abortions.
The American College of Obstetricians and Gynecologists has adamantly supported the Affordable Care Act’s mandate for birth control coverage, saying access to contraception is “a medical necessity for women during approximately 30 years of their lives.”
“Denying women access to contraception is discrimination, plain and simple,” said Boston, of Americans United. “Obviously, religious freedom is an important value for all Americans, but it should never be used as a weapon to take away someone else’s health care or subject them to discrimination or harm.”