The Biden administration wants to make it easier for women to obtain free birth control under the Affordable Care Act, reversing Trump-era rules that weakened the law’s contraceptive mandate for employer-provided health insurance plans.
The proposed rule, released Monday by the Departments of Health and Human Services, Labor and Treasury, would eliminate a mandated waiver that allows employers to opt out of moral convictions. It would also create a separate path for individuals enrolled in programs offered by employers with religious exemptions to receive contraceptive services at no cost through voluntary providers.
Proposed rule would preserve existing religious exemptions for employers There are objections, and optional accommodations for contraceptive insurance.
A senior HHS official told CNN that the administration crafted the proposed rule while taking into account employers’ concerns about religious dissent and their workers’ need for contraception.
“We had to think hard about how to do it the right way to satisfy both parties, but we think we found that way,” the official said, stressing that there should be no repercussions for employers of religious belief.
Students at religiously-affiliated universities can use expanded accommodations, as do workers in group health plans whose employers require exemptions.
Now that the proposed rules have been published, the public will have the opportunity to comment over the next few months. Officials expect thousands of public comments and “many months” before the rules are finalized.
HHS expects the proposal to affect more than 100 employers and 125,000 workers, primarily by providing employees with a proposed independent path to access free contraceptives.
Women who use this pathway will receive birth control from a participating provider who will be reimbursed by their insurance company in an Affordable Care Act exchange. In turn, the insurer will get a credit on the royalties it pays the government.
“If this rule is finalized, those individuals who have a health plan who would be subject to the ACA’s preventive services requirement but do not cover contraceptive services due to moral or religious objections, and who have not opted for optional accommodations by their sponsoring employer or college or university, can now used,” Centers for Medicare and Medicaid Services administrator Chiquita Brooks-LaSure said at a news conference.
The requirement to provide free contraceptives is not in the Affordable Care Act. Instead, HHS under former President Barack Obama listed it as one of the preventive services for women that all private insurance plans must provide for free.
The mandate has been controversial from the start, sparking lawsuits from religious employers and privately held companies arguing it violated their beliefs. Exemptions and accommodations are available for such employers.
However, the Trump administration has weakened that mandate. Under rules issued in 2018, entities that “hold a bona fide religious belief” against offering contraceptives are not required to do so. The rule also applies to organizations and small businesses that raise objections “based on moral convictions that are not based on any particular religious belief.”
The rules also included an optional tweak that would allow opposing employers and private universities to opt out of offering birth control coverage themselves, while still allowing their workers and dependents access to contraception. But employers or universities must voluntarily choose where to live, potentially keeping many people out.
The Trump administration’s reforms were temporarily blocked after a Pennsylvania district court judge issued a nationwide injunction in 2019. But the following year, the Supreme Court ruled that the government could expand the immunity for employers who are religiously or morally opposed to contraception.
At the time, the National Women’s Law Center estimated that the ruling would affect about 64.3 million women in the United States whose insurance covers birth control and other preventive services at no out-of-pocket cost.
Employers do not need to notify HHS if they have an ethical objection. The agency estimates about 18 employers claimed exemptions and about 15 employees were affected.
Still, if the rule is finalized, senior HHS officials said it is “potential” that there could be lawsuits by religious employers — similar to what has been seen in the past.
“They have no new obligation to participate in any type of process. It’s just an additional channel for those employees in their employer’s health plan to get contraceptive services,” another senior HHS official said.
Contraception rules have grown in importance since the Supreme Court overturned Roe v. Wade, allowing many states to impose strict restrictions on abortion.
The Biden administration, in turn, is focused on maintaining free access to birth control. The health, labor and treasury secretaries met with health insurers last year and issued guidance emphasizing Obamacare’s contraceptive coverage requirements for private insurance under the Affordable Care Act.
“Now more than ever, access to and coverage of contraception is needed as the Biden-Harris administration works to help ensure that women everywhere have access to the contraception they need, when they need it, and — thanks to the ACA — There’s no way out – out-of-pocket,” HHS Secretary Xavier Becerra said at a news conference.