Advocates for reproductive rights, health, and justice are on high alert after the Trump administration indicated it is close to taking a regulatory ax to Obamacare’s birth control benefit.
The Office of Management and Budget (OMB) is reviewing an interim final rule, “Coverage Of Certain Preventive Services Under The Affordable Care Act [ACA],” the administration’s budget arm posted this week to reginfo.gov.
“This means that the rule has been drafted by the relevant agencies”—in this case, the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS)—”and OMB review is the last step before it is published,” according to the National Women’s Law Center (NWLC).
“We don’t know precisely when we’ll see the interim final rule—there is no minimum amount of time, and although there is a 90-day limit on review, OMB or the head of the rulemaking agency can extend that time period,” NWLC said in a statement.
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An interim final rule goes into effect immediately rather than at the end of the notice-and-comment period typical under the federal rule-making process, even as comments continue to roll in. If the final rule indeed targets the ACA’s popular birth control benefit, the comments could be scathing; more than 55 million women received coverage for contraceptives and other preventive services without co-pay as of December 2016, according to a NWLC fact sheet. And that total doesn’t account for the transgender and gender nonconforming people who, in their own words, also rely on the benefit.
Prominent Democrats in the U.S. Senate have warned the administration to back off.
“Should this yet be another step by the administration to roll back women’s health and rights, you better expect a very strong opposition from this senator, Democrats, and women across the country,” Sen. Patty Murray (D-WA), the top Democrat on the Senate Health, Education, Labor, and Pensions Committee, told OMB Director Mick Mulvaney at a budget hearing on Thursday.
Mulvaney testified on Capitol Hill as the architect of the White House’s budget proposal slashing $610 billion from Medicaid on top of $839 billion proposed in the latest version of Republicans’ health-care plan. He justified the cuts by telling reporters on Tuesday that Medicaid is better suited to the “urban poor” than the “rural poor,” in what’s known as a dog whistle or racially coded distinction about who deserves health-care benefits.
“I’m not aware of that specific detail, but I hear what you’re saying,” Mulvaney told Murray during the Thursday hearing.
Murray and 13 other Democrats left no details out of a letter they sent that same day to Mulvaney.
“Given the Trump Administration’s record of seeking to roll back women’s health and rights, we see this as a signal that access to affordable birth control may be the Administration’s next target,” they wrote. “We urge you to abandon any proposal that would erode access to affordable preventive health care for women, including birth control.”
A three-part Rewire series detailing the administration’s regulatory war on so-called women’s health benefits examined how the agencies, especially Secretary Tom Price’s HHS, could gut the birth control benefit. The statutory text of the ACA, or Obamacare, only requires coverage of essential health benefits and women’s preventive services. The specific types of women’s preventive services, including contraception without co-pay, live in regulations under a subagency of HHS and therefore remain exposed to regulatory action from an avowedly anti-choice administration.
Price believes “there’s not one” woman who can’t afford birth control. Advocates have long expected him to target contraception through the federal rule-making process or in conjunction with other agency heads—in this case, with CMS Administrator Seema Verma, who stood next to Trump as he signed an executive order decimating Title X federal family planning protections.
The White House provided an assist this month, issuing a long-rumored religious imposition executive order intended to hasten the birth control benefit’s demise. Although Trump congratulated the Little Sisters of the Poor on “winning” its fight to turn the law’s accommodation process for religiously affiliated nonprofits into the outright exemption already available to churches and other houses of worship, they haven’t. Lawyers for the Trump administration keep punting their day in court to provide an explanation for abandoning the federal government’s defense of the benefit, as Rewire’s Jessica Mason Pieklo explained.
NWLC further warned that a change to the birth control benefit could be tied to other legal challenges consolidated under Zubik v. Burwell. June 1 marks the next deadline in the cases.
More damage to contraceptive access could be in store if Price and other administration officials try to redefine the 18 FDA-approved forms of contraceptives in a joint HHS, U.S. Department of Labor, and U.S. Department of the Treasury guidance document.