News Law and Policy

Trump to Blow Up Obamacare’s Birth Control Benefit

Christine Grimaldi & Jessica Mason Pieklo

The draft interim final rule echoes Health and Human Services Secretary Tom Price’s belief that “there’s not one” woman who can’t afford birth control.

Any business that provides employer-sponsored health insurance can soon claim a religious or moral objection to covering birth control, courtesy of the Trump administration.

That could leave more than 55 million cisgender women and an untold number of transgender and gender nonconforming people who rely on no-copay contraception under the Affordable Care Act’s (ACA) popular birth control benefit on the hook for the cost of the medication or a device—far beyond the cost of a co-pay.

The sweeping consequences emerged in a purported leaked draft of an interim final rule obtained by Vox. The administration’s forthcoming regulatory blow doesn’t drop the requirement for contraception at no cost to the consumer outlined in the women’s preventive services guidelines supporting the ACA, or Obamacare. But it attempts to undermine it.

The Obama administration provided churches and other houses of worship with an exemption from complying with the birth control benefit, along with an accommodation process for religiously affiliated nonprofits they’re fighting to turn into an outright exemption. The draft rule leaves the accommodation process intact “as an optional alternative” but now allows those religiously affiliated nonprofits and any employer to take the exemption based on religious beliefs and, for the first time, on “moral convictions” too.

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Will secular employers trying to cut corners follow suit?

“It’s [not] rational to think that there’s a savings because we know that if you don’t cover birth control, you end up covering pregnancies,” Mara Gandal-Powers, senior counsel for the National Women’s Law Center (NWLC), said in a phone interview. But some might seize on the opportunity to cut benefits without considering the long-term consequences, Gandal-Powers warned.

The administration indicated that people who object to birth control on religious or moral grounds could obtain an exemption from paying for contraceptive coverage in their health insurance plans. Congressional Republicans have similarly argued that men shouldn’t have to pay for maternity care, even though that’s not how health insurance works.

“It’s hard for me to imagine an insurance company creating a plan like that,” Gandal-Powers said. “I don’t think there’s going to be a huge demand, because people like their birth control coverage.”

Rewire first reported last week that the rule is under final review by the administration’s budget arm. Should the leaked draft remain intact, the policies will go 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 into the U.S. Department of Health and Human Services (HHS) and presumably, into the other agencies spearheading the effort.

Losing Access to Affordable Contraception

The draft interim final rule echoes HHS Secretary Tom Price’s belief that “there’s not one” woman who can’t afford birth control. Women with low incomes have “multiple” ways to obtain “free or subsidized contraceptives,” the draft claims. But all the cited programs—Medicaid, Title X, health center grants, and Temporary Assistance for Needy Families, or welfare—face massive cuts that often go hand in hand with prohibitive restrictions from the executive and legislative branches of the federal government.

Case in point: President Trump worked with anti-choice activists and congressional Republicans to shred Obama-era Title X family planning safeguards. Trump then appointed Teresa Manning, a notorious birth control foe who believes “contraception doesn’t work,” to helm the HHS office charged with administering the Title X program and ensuring people with low incomes have access to family planning services. And Republicans on Capitol Hill are again poised to undermine Title X in the upcoming appropriations process.

“This is just a variation on a theme with where they stand on women’s health and birth control,” Gandal-Powers told Rewire.

The misinformation in the draft goes as far as to claim that “most forms of contraception are available for around $50 per month, including long-acting methods such as the birth control shot and the IUD [intrauterine device].” An IUD and insertion by a health-care provider can total well over $1,000, as Slate has reported. And the cost must be paid upfront.

The administration in the draft indicated that it might target IUDs, one of the 18 U.S. Food and Drug Administration-approved contraceptive methods people can access without co-pay. The birth control benefit covers “several contraceptive methods that many persons and organizations believe are abortifacient”—a common anti-choice talking point about IUDs.

The FDA-approved contraceptive methods live in a joint HHS, U.S. Department of Labor, and U.S. Department of the Treasury guidance document.

Foisting Religious Imposition on the Courts

The draft interim final rule attacks the ongoing litigation around the ACA’s birth control benefit and anticipates challenges to this latest wrinkle by contending a lack of evidence to support the argument that the government has a “compelling interest” in providing contraceptive coverage without co-pay. The Roberts Court’s ruling against the birth control benefit in Hobby Lobby presumed, without deciding, that the government had a compelling interest to require non-discriminatory health insurance coverage.

The Trump administration disputes this assertion, citing scholarship by anti-contraceptive advocate and representative to the Vatican Helen Alvare in the draft. That argument raises questions, and consequences, for some of the country’s most marginalized people. If the federal government does not have a compelling interest in providing access to comprehensive health care coverage via the ACA, does it have any interest under Medicaid for people with low incomes?

The immediate effect of this purported draft rule on the cases challenging the benefit that are stalled in federal court, however, remains unclear. The Trump administration claims in this interim rule that it can avoid the usual rule-making process under the Administrative Procedure Act to effectively cut off the public’s ability to weigh in on the change. The administration’s rationale is that the benefit has already gone through multiple rule-making processes given the years of legal challenges to it.

Given the considerable differences between the Obama administration’s rule and the Trump administration’s rule, it is questionable as to whether the federal courts will allow the administration to skirt federal law in this way. The administration claims within its draft interim final rule that it applies only to the birth control benefit. But the language of the leaked version suggests the consequences go further than that.

The draft rule explicitly expands the scope of the Religious Freedom Restoration Act (RFRA), the federal statute at the heart of the legal challenges to the birth control benefit. The rule notes that RFRA does not expressly protect moral objections to government laws or regulations and, in the same breath, purports to grant anyone the ability to raise a moral objection to complying with the benefit.

The administration cites as authority to do so March for Life v. Burwell, a federal court case out of Washington, D.C., that blocked the Obama administration from enforcing the penalty for not complying with the benefit. In that case, March for Life raised a moral objection, not a religious one, to complying with the benefit.

In other words, the rule tries to amend RFRA even though only the U.S. Congress can do so.

The rule builds off conservatives’ favorite argument that “not one woman” can’t afford birth control, and that birth control can and should be over the counter. This argument intentionally ignores the existence of conscience protections already in place that allow pharmacists to refuse customers access to contraception based on religious belief. The rule, as drafted, could extend to those conscience protections which are grounded in respecting religious objections into protecting asserted moral objections to contraception as well. The Supreme Court in Hobby Lobby said it was inappropriate to examine the sincerity of the religious beliefs against contraception. Presumably, an even more conservative Court that now includes Justice Neil Gorsuch would find the same true with any stated moral objection to contraception access.

The NWLC is preparing to take action against the interim final rule, which Gandal-Powers said violates both congressional intent and the courts’ interpretation of RFRA.

“If this is in fact what the rule is going to look like when it comes out, we will be commenting, we will be rallying people to comment—people across the country—and we’re planning litigation.”

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