The Trump administration on Wednesday released a flurry of anti-choice rules in an apparent post-election attack on reproductive health access.
The U.S. Departments of Health and Human Services (HHS), Treasury, and Labor announced two final rules granting nonprofits and some businesses the right to apply for religious or moral exemptions to the Affordable Care Act’s (ACA) birth control benefit, which requires that contraceptives be provided without a co-pay. A third rule was proposed by the Centers for Medicare & Medicaid Services (CMS) which would require insurance companies to bill customers and collect payments separately “for the portion of the consumer’s premium attributable to certain abortion services,” which advocates say will threaten private insurance coverage for abortion care.
The birth control rules endanger the care of more than 55 million cisgender women and an uncertain number of trans and nonbinary people who depend on getting no co-pay contraceptive care through the ACA. While the birth control benefit already allowed for religious exemptions, the Trump administration has sought to further meet the demands of the religious right, which believes the previous exemption isn’t broad enough.
“These rules threaten to erode decades of progress in increasing women’s reproductive autonomy,” said Dr. Lisa Hollier, president of the American College of Obstetricians and Gynecologists (ACOG), in a statement on the announcement. “The final rules follow an alarming pattern of medically unnecessary decisions in women’s health policy that, together, undermine women’s access to care and advance harmful, medically inaccurate rhetoric about women’s health.”
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The release of the final birth control rules had been anticipated by advocates since news broke last month that finalized versions had been submitted to the Office of Management and Budget (OMB). At the time it was unclear if the final rules would be different from the proposed draft rules first revealed in October of last year, but it appears there are some ancillary changes to the rules’ language.
“The way the [final] rules function is the same as what was in the interim final rules, [but] there is a little bit of a clarification that they made around the implementation and how it works [such as] the timing of when folks can stop doing the accommodations,” said Mara Gandal-Powers, director of birth control access and senior counsel at the National Women’s Law Center, in an interview with Rewire.News. “That is new language in there, but it doesn’t change the impact of the rule, they didn’t change [who] can be eligible [for the accommodations]. So we are still very concerned about what the impact will be.”
Implementation of the rules were challenged in federal court and Gandal-Powers said the most significant language change came in the form of the preamble of the religious exemption rule. The preamble language, she said, appears written to counter specific legal arguments against the rules now being heard in federal court. The timing of the rules’ releases was also suspicious to Gandal-Powers.
“It’s not a coincidence that they were dropped the day after the election when we see in the rules that folks in the administration had approved these in the middle of October,” she said. “They held them because they know that birth control is popular among wide swaths of the public. Not just liberals or Democrats …. And I think they knew that dropping these rules before [the election] would not help them.”
During his first post-midterm press conference Wednesday, the president suggested that he had a secret “solution” to the “very divisive” issue of abortion. Later in the day, CMS announced its proposed draft rule which would require ACA health insurance plans to separate out any portion of premiums that would be applied to abortion care and bill customers separately for it. The rule would also require that federal ACA premium subsidies could not be applied towards abortion-related premiums, meaning that customers would have to pay the premium applicable to abortion care out of pocket.
“CMS will continue its effort to enforce requirements in [the ACA], which outlines specific requirements for issuers that offer coverage for certain abortion services that are prohibited from receiving federal funds, including that issuers must collect a ‘separate payment’ from each enrollee for the portion of the consumer’s premium attributable to these services,” read a CMS press release about the proposed rule.
“[Previously] the payment is separate, but the bill has not necessarily been separate,” said Alina Salganicoff, vice president and director of Women’s Health Policy at Kaiser Family Foundation, said in an interview with Rewire.News. “[CMS says] that their proposal would require the health plan to send a separate bill in a separate mailing with separate postage. And if they issue bills electronically, they propose that consumers with two bills get two separate emails.” Salganicoff added that the proposed rule says insurance providers should encourage customers to send two separate forms of payment for the premiums.
According to Salganicoff, the proposed rule applies to all fiscal year 2019 ACA individual market plans, which began open enrollment on November 1st of this year. Interim final rules can be enforced right away, but they generally still need to go through a required 60-day public comment period before they can be finalized.
The requirements would increase overhead costs for health insurance companies that do provide coverage for abortion care, which disincentivizes companies from offering that coverage option, according to Salganicoff. Compliance with the rule could also open the door for customers to object to paying the abortion-related portion of the premium.
The move comes at the urging of anti-choice groups. Susan B. Anthony List president Marjorie Dannenfelser and Family Research Council President Tony Perkins in an op-ed published last week in the Hill, called on the administration to introduce a rule halting what they called the “hidden abortion surcharge.” Both groups have extensive ties to the Trump’s HHS. Empowering individuals to skip payment for abortion-related insurance premiums has been a long-time demand for anti-choice groups, and they celebrated Trump’s proposed rule Wednesday.
But pro-choice advocates blasted the rule as yet another encroachment on reproductive autonomy by the administration.
“It’s no coincidence that less than a day after a record number of progressive women were elected to office and millions of voters stood up against the current administration’s rollback of our basic rights, Trump’s health department has taken sharp aim at women’s access to birth control and abortion,” said Mary Alice Carter, executive director of Equity Forward in a statement. “The political temper tantrum would almost be laughable if the repercussions on women’s health weren’t so serious.”
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