Leaked regulation: Trump plans to roll back Obamacare birth control mandate

The Trump administration is apparently preparing to overhaul Obamacare’s birth control mandate, purportedly allowing any employer to seek a moral or religious exemption from the requirement, according to a draft regulation obtained by Vox.

The Affordable Care Act requires nearly all employers to offer health insurance that covers access to a wide array of contraceptive methods. The draft proposal, if finalized, would significantly broaden the type of companies and organizations that can request an exemption. This could lead to many American women who currently receive no-cost contraception having to pay out of pocket for their medication.

“It’s just a very, very, very broad exception for everybody,” Tim Jost, a health law professor at Washington and Lee University, told Vox. “If you don’t want to provide it, you don’t have to provide it.”

Vox obtained a copy of the regulation, dated May 23. (The document Vox obtained is embedded below, or can be viewed on DocumentCloud.) The Office of Management and Budget is currently reviewing this proposal, the final step before a new regulation is made official. It is unclear whether the Trump administration has made changes to the draft regulation over the past week, or what the final version of the regulation might look like.

Spokespeople for the US Health and Human Services, Labor, and Treasury departments, the agencies responsible for the rule, did not respond to a request for comment on Tuesday night. A spokesperson for the White House also did not respond.

The drafted 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” privately 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 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 for their exemption.

The Trump administration cites protecting religious liberty as well as the situation left unresolved by the Obama administration as reasons for issuing this new regulation with a wider exemption.

“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 rule, explaining its decision.

Jost, an expert on health policy, says this represents a very significant widening of the exemptions the Obama administration allowed.

“Basically, what they’re saying is that contraception isn’t all that big a deal,” he said. “They do come up with an incredibly broad exemption.”

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 woman 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.

The new rule would take effect immediately, once it is published by the Trump administration.