By ROBERT PEAROCT. 5, 2017
The Obama-era policy on contraceptives generated dozens of lawsuits by employers, including religious schools and colleges. Credit Ruth Fremson/The New York Times
Update: The Trump administration has rolled back the birth control coverage mandate. Find more coverage here.
WASHINGTON — The Trump administration is poised to roll back the federal requirement for employers to include birth control coverage in their health insurance plans, vastly expanding exemptions for those that cite moral or religious objections.
The new rules, which could be issued as soon as Friday, fulfill a campaign promise by President Trump and are sure to touch off a round of lawsuits on the issue.
More than 55 million women have access to birth control without co-payments because of the contraceptive coverage mandate, according to a study commissioned by the Obama administration. Under the new regulations, hundreds of thousands of women could lose birth control benefits they now receive at no cost under the Affordable Care Act.
One new rule offers an exemption to any employer or insurer that objects to covering contraceptive services “based on its sincerely held religious beliefs.”
Another regulation offers a new exemption to employers that have “moral convictions” against covering contraceptives.
Both rules would take effect as soon as they are on display at the office of the Federal Register.
There is no way to satisfy all of the religious objections to the contraceptive coverage mandate, so “it is necessary and appropriate to provide the expanded exemptions,” the Trump administration says in the new rules.
“Application of the mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest,” it says.
The Trump administration acknowledges that this is a reversal of President Barack Obama’s conclusion that the mandate was needed because the government had a compelling interest in protecting women’s health.
In the new rules, the Trump administration says the Affordable Care Act does not explicitly require coverage of contraceptives.
The administration lists health risks that it says may be associated with the use of certain contraceptives, and it says the mandate could promote “risky sexual behavior” among some teenagers and young adults.
By contrast, many doctors, including obstetricians and gynecologists, say contraceptives have generally been a boon to women’s health.
The mandate also, the administration says, imposes a “substantial burden” on the free exercise of religion by certain employers who object to it.
The Trump administration says the new rules are motivated by “our desire to bring to a close the more than five years of litigation” over the contraceptive coverage mandate.
The Obama-era policy generated dozens of lawsuits by employers, including religious schools, colleges, hospitals and charitable organizations, priests and nuns and even some owners of private for-profit companies who objected to some forms of birth control.
However, the rules are likely to generate more litigation, this time by advocates for women and public health groups.
In expanding the exemption for employers, the Trump administration says there are many other sources of birth control.
“The government,” it says, “already engages in dozens of programs that subsidize contraception for the low-income women” who are most at risk for unintended pregnancy.
Employers claiming an exemption from the contraceptive coverage mandate “do not need to file notices or certifications” with the government, although they would need to inform employees of changes in coverage.
The exemption will be available to for-profit companies, whether they are owned by one family or thousands of shareholders.
The Trump administration said the new rules would take effect immediately because “it would be impracticable and contrary to the public interest to engage in full notice and comment rule-making.” Still, it said, it will accept comments from the public.
The new rules, drafted mainly by political appointees at the White House and the Department of Health and Human Services, seek “to better balance the interests” of women with those of employers and insurers that have conscientious objections to contraceptive coverage.
Among those who have resisted the mandate are the Little Sisters of the Poor, an order of Roman Catholic nuns who said that compliance with the mandate would make them “morally complicit in grave sin.”
As a candidate, Mr. Trump promised that he would “make absolutely certain religious orders like the Little Sisters of the Poor are not bullied by the federal government because of their religious beliefs.”
But Dr. Haywood L. Brown, the president of the American College of Obstetricians and Gynecologists, said the rules would turn back the clock on women’s health.
“Affordable contraception for women saves lives,” he said. “It prevents pregnancies. It improves maternal mortality. It prevents adolescent pregnancies.”
The National Women’s Law Center, a nonprofit advocacy group, has been preparing a lawsuit since last spring, when it learned that the Trump administration intended to rewrite the contraception coverage mandate.
The Trump administration has legal reasons for issuing two rules, one for religious objections and one for moral objections. Most lawsuits attacking the mandate assert that it violates a 1993 law protecting religious liberty. The administration acknowledges that the law, the Religious Freedom Restoration Act, “does not provide protection for nonreligious, moral conscientious objections.”
But, the administration says, “Congress has a consistent history of supporting conscience protections for moral convictions alongside protections for religious beliefs.”
In one of the new rules, the Trump administration says that exemptions should be available to “nonreligious nonprofit organizations” like March for Life, which holds an annual march opposing abortion.
A principal author of the rules, Matthew Bowman, a top lawyer at the Department of Health and Human Services, represented March for Life in 2014 when he was a lawyer at the Alliance Defending Freedom, a Christian legal advocacy group.
The new exemptions will be available to colleges and universities that provide health insurance to students as well as employees. A number of religiously affiliated schools have filed lawsuits challenging the mandate.
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