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How much could Trump undo Obamacare’s birth control mandate?

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Any day now, President Trump is expected to roll back Obamacare's contraceptive mandate.

The Trump administration had a few options for undercutting the health care law's requirement that all health plans cover contraceptives at no cost to the woman. It appears they'll take the "religious freedom" route, making it easier for employers with religious objections to skirt the mandate.

Trump signed an executive order authorizing the move earlier this month, and new regulations are now pending.

We don't know yet exactly how far the Trump administration will unwind the mandate. But the fight over it is likely just beginning.

The Obamacare mandate had almost eliminated any cost-sharing that women had to pay for contraception: 20 percent of women paid something out of pocket for their oral contraceptives pre-mandate, per the Kaiser Family Foundation; a few years later, after the mandate took effect, less than 4 percent did.

So any gaps in coverage from Trump's new policy could put many women, maybe millions, on the hook for the cost of their medication again.

The first question will be whether the new rule from the Trump administration will target only the contraceptive mandate or women's preventive services more broadly, Adam Sonfield at the Guttmacher Institute told me. The mandate has been the focus of the legal fights, but it's at least possible the new Trump rule goes broader.

If the new rules apply strictly to the mandate, though, as expected, then the next question is how many employers the Trump administration would exempt from the contraception requirement.

Right now, houses of worship are fully exempted from covering contraception. Other religious organizations and private companies with small ownership that object to contraception on religious grounds can opt out the mandate, and the health plan then steps in to pay for contraception with no cost sharing for the employee.

Those groups have sued over the Obama administration's requirement that they fill out some kind of paperwork to register their objection, arguing that it amounted to a tacit acceptance of contraception.

The Supreme Court had ordered the government and the mandate's opponents to find a compromise, something that allowed the employers to feel comfortable that they weren't even implicitly endorsing contraception while also ensuring that women were able to get the medication they were entitled to.

I'd recommend this overview by Tim Jost at Health Affairs if you need a refresher on all the history. But the bottom line is: The Obama White House and the mandate's opponents ended up at an impasse. The administration said it couldn't find any such compromise.

"I think at this point, the fundamental position of the religious organizations is we shouldn’t have to tell anybody anything," Jost told me.

Now the Trump administration can take federal policy in a dramatically new direction.

Trump could greatly expand the employers who are fully exempted from the mandate, possibly including some Catholic hospitals and universities that have sued over the Obamacare policy by arguing that any paperwork to opt out of the mandate made them complicit. HHS could go so far as to add major publicly traded companies to the list.

That would surely be met with a legal challenge. So Trump might instead eliminate the requirement that employers with religious objections file any formal paperwork.

But that could become an administrative nightmare. How would employees be notified that their plan doesn't cover these services, and how would they be connected to the coverage they're entitled to? Women would be at risk of falling through the cracks and having to pay for medications that had previously been free of charge.

And some experts who support the mandate doubt the religious organizations would really be satisfied.

"There is nothing that is going to satisfy them that still ends up with employees having this coverage," Sonfield said.

Jost said some of these groups have suggested setting up a government program, maybe under Medicaid, to provide contraception to women whose employers opt out of the mandate. But that could open up a whole different set of problems.

Some other less prominent issues — individuals who object to buying an insurance policy that covers contraception and employers who object to the mandate on moral, rather than explicitly religious, reasons — could also be addressed in the new regulations.

But the central riddle for the Trump administration is, courtesy of the Supreme Court: providing an accommodation to religious groups that don't want to even tacitly endorse contraception, while guaranteeing women can still get their medicine.

Any failure to find that balance risks yanking coverage that millions of American women now enjoy.

We should know in a few days how the Trump administration will resolve those issues. Then you should expect the policy's opponents to race to the nearest courthouse.

"It’s not gonna be over yet," Jost said. "How long does it take to file a lawsuit? Can they get a nationwide injunction?"

Chart of the Day

Kaiser Family Foundation

Dramatic drop in contraception costs. The line doesn't lie: Under Obamacare's contraception mandate, out-of-pocket spending on the medication has been almost completely eliminated for American women. Read more from the Kaiser Family Foundation.

Kliff’s Notes

Your daily top health care reads, with research help from Caitlin Davis

  • "This Senate staffer could change the course of the health-care debate": “[Senate Parliamentarian Elizabeth] MacDonough’s primary task over the next few weeks will be to rule on whether the AHCA qualifies as a budget reconciliation bill. If she finds that individual parts of the bill wouldn’t have a direct budgetary impact through a process known as a 'Byrd bath,' those parts would be stripped out. That doesn’t mean, however, that the House would have to vote again on its measure — just that lawmakers could consider only a pared-back version.” —Paige Winfield Cunningham, The Washington Post
  • "Drug Lobbyists’ Battle Cry Over Prices: Blame the Others": “A civil war has broken out among the most powerful players in the pharmaceutical industry — including brand-name and generic drug makers, and even your local pharmacists — with each blaming others for the rising price of medicine. It is an industry that was already spending nearly double what other business sectors in the United States economy allocate on lobbying, and those sums continue to rise.” —Eric Lipton and Katie Thomas, New York Times
  • "States Fear Price Of New Zika Vaccine Will Be More Than They Can Pay": “Sen. Bernie Sanders, I-Vermont, isn't impressed with Sanofi's arguments. He has been urging the Army to withhold the license from Sanofi until the company agrees to charge U.S. customers a fair price. 'It seems to me that if we are providing substantial amounts of money to a company to distribute and develop this drug that the American people should be guaranteed that they're going to be able to afford the price of the vaccine,' Sanders tells Shots.” —Alison Kodjak, NPR

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