The Trump administration is expected to release new regulations Friday relaxing an Obama-era requirement that nearly all employers offer health insurance that covers a wide array of contraceptive methods.
A draft version of these rules, obtained by Vox in May, broadened the types of companies and organizations that can request an exemption from that rule. This could lead to many American women who currently receive no-cost contraception having to pay out of pocket for their medication.
“The Departments have concluded that the governmental interest in ensuring that the employees of [certain] organizations receive contraceptive coverage as part of their employer-sponsored plan is less significant than previously stated,” the Trump administration stated in the draft.
The draft rule was also blunt about its expected effects, noting that “These final rules will result in some enrollees in plans of exempt entities not receiving coverage or payments for contraceptive services.”
It is not currently known how much the final rule will vary from the draft.
Women’s health groups, including the National Women’s Law Center and the Center for Reproductive Rights, have been preparing to file lawsuits against the regulation, based on the draft that has circulated in Washington for months now.
Obamacare requires nearly all insurance plans to cover birth control — a provision protested by religious employers
This rule would significantly overhaul the birth control mandate as it had been implemented by the Obama administration.
The birth control mandate is one of eight women’s preventive health benefits that the Affordable Care Act requires health plans to provide without any cost to the patient. Other required benefits include breastfeeding equipment, HPV testing, and domestic violence screenings.
Obamacare directed the Institute of Medicine, an independent, congressionally chartered body, to define what medical services should be included as women’s preventive health benefits. The health care law did not include a specific list of services.
The IOM’s decision to include birth control as a preventive benefit set off a fierce political fight, with religious business owners, hospitals, and universities protesting the requirement to cover particular types of contraceptives, particularly intrauterine devices and emergency contraceptives.
Religious houses of worship were the only employers exempted from the mandate entirely. The Obama White House gave some relief to religiously affiliated hospitals and universities. In Burwell v. Hobby Lobby, the Supreme Court ruled 5-4 that it would allow “closely held” private businesses to also exclude birth control from their insurance plans if coverage would violate their religious beliefs.
These employers were asked to file paperwork with the Obama administration, and then their health insurer would step in to pay for their employees’ contraception.
But some religious groups objected to even that process, arguing that by taking an affirmative action like filing paperwork they were tacitly endorsing the contraception that their employees would still receive. After various legal challenges over that issue, the Supreme Court asked the federal government and the mandate’s opponents to find a compromise that would suit both sides. But they failed to do so before the end of the Obama administration.
The Trump administration’s draft rule, explained
The Trump administration’s draft regulation would allow any employer to request an exemption based on moral or religious objections. This would widen the exemption to apply to any company from a small, religiously affiliated business to a large, publicly traded company.
Universities that provide students’ health coverage are considered employers for health insurance purposes and could also seek the same exemption. Employers could cite any religious or moral reason.
“Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market,” the administration states in the draft rule, explaining its decision.
Employers seeking an exemption would not be required to notify the government under the drafted rule, though they would have to make clear in their health plan documents that they do not cover contraception and would be required to notify their employees of any change in benefits.
The rule, as drafted, would also allow health insurers to refuse to cover contraception for religious or moral reasons, though the administration noted it was not aware of any health insurers that have those objections. It would also allow individuals to object to participating in a health plan that covers birth control.
As the Trump administration itself notes, workers whose employers request an exemption from the mandate are no longer entitled to free birth control. They would potentially have to cover the cost themselves.
More than 20 percent of US women of childbearing age had to pay money out of pocket for oral contraceptives prior to the Obamacare mandate, according to the Kaiser Family Foundation. That shrunk to less than 4 percent a few years after the mandate took effect.
If employers seek an immediate exemption from the mandate, they would be required to send a notice to their employees. If they instead choose to make the change at the start of their next plan year, employees would be notified through the usual summary of benefit changes that plans are required to provide.