Trump Administration Expands Contraceptive Mandate Exemptions
On October 6, 2017, the Trump Administration announced “Interim Final Rules” [1] which expand exemptions to the contraceptive mandate of the Patient Protection and Affordable Care Act of 2010[2] and the Health Care and Education Reconciliation Act of 2010[3] (collectively, the “ACA,” commonly referred to as “Obamacare”). Accommodations exempting certain employers from providing its employees with contraceptive/abortifacient services based upon sincerely held religious beliefs are now expanded to employers objecting to providing such services “based on sincerely held moral convictions but not religious beliefs.”[4] These Interim Final Rules were issued “to better balance the Government’s interest in promoting coverage for contraceptive and sterilization services with the Government’s interests in providing conscience protections for individuals and entities with sincerely held moral convictions in certain health care contexts, and in minimizing burdens imposed by our regulation of the health insurance market.”[5]
The ACA’s contraceptive mandate generally requires employers to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling” as part of its health insurance benefit.[6] This mandate has been the subject of high-profile litigation in recent years. The Supreme Court affirmed in Burwell v Hobby Lobby Stores, Inc. 134 S.Ct. 2751 (2014) and similar cases that the contraceptive mandate is a substantial burden on religious expression as protected by the Religious Freedom Restoration Act (RFRA)[7], because the “Hobson’s choice” to either follow the law or religious conscience is untenable.[8]
The Department of the Treasury, the Department of Labor, and the Department of Health and Human Services (HHS) (collectively, the “Departments”) had previously acknowledged the need for absolute exemptions for religious employers, such as worship centers and their auxiliaries, and provided an accommodation for religiously-affiliated non-profit organizations.[9] In order to utilize the accommodation, an eligible religious organization needed only to self-certify that it was eligible for the accommodation on religious grounds.[10]
By self-certifying, the organization was under no obligation to pay for any costs associated with contraceptive coverage, and continued to be free to express its views against contraception. Insurance providers were obliged to maintain contraceptive coverage for the organization’s beneficiaries without imposing any cost shares, premiums, or other fees to the organization or to any beneficiary who takes advantage of the contraceptive coverage.[11] Presumably, the cost of this accommodation to the insurer is more than offset by the cost savings associated with fewer unplanned or unwanted pregnancies as a result of contraceptive use.[12]
The Interim Final Rules presumably make this accommodation available to a larger number of employers, and more easily accessible. Any entity that claims a “sincerely held religious belief” or “objections on the basis of moral conviction” against providing contraceptive/abortifacient services is eligible for the exemption and need not file notices or certifications of their exemptions.[13] The exemption is also not limited to non-profit entities.[14] However, objecting entities are exempt only “with respect to the items to which they object, but not with respect to the items to which they do not object.”[15]
HHS estimates that 120,000 women, at most, will be affected by this expanded exemption, and that it will have no impact on contraceptive coverage for “99.9% of women” in the United States.[16]
Additionally, the Interim Final Rules provide an individual exemption, allowing “plan sponsors and issuers that do not specifically object to contraceptive coverage to offer morally acceptable coverage to their participants or subscribers who do object, while offering coverage that includes contraception to participants or subscribers who do not object.”[17]
The Interim Final Rules do not change other government programs advancing contraceptive coverage, including those for low-income women.[18] These rules also do not affect the contraceptive coverage mandate in place for those individuals and entities who do not qualify for a religious or moral exemption.
The accommodation was expanded in part due to recent litigation challenging the mandate based on nonreligious moral convictions.[19] The Departments state, “We believe that these [I]nterim [F]inal [R]ules are consistent both with the American tradition of respect for conscience and with Congress’ history of providing conscience protections in the kinds of health care matters involved in this [m]andate.”[20] Continuing,
[T]he Departments draw on nearly 50 years of statutory law and Supreme Court precedent discussing the protection of moral convictions in certain circumstances—particularly in the context of health care and health insurance coverage… including the so-called Church Amendments[21] which protect individuals and entities from being required to facilitate abortions or sterilizations contrary to sincerely held moral convictions.[22]…These various statutes and regulations reflect an important governmental interest in protecting moral convictions in appropriate health contexts.[23]
Comments on these Interim Final Rules can be submitted through December 5, 2017 through www.regulations.gov.