The Trump administration is following through on promises to roll back the Affordable Care Act’s contraception mandate, though health officials say the vast majority of insured women won’t be affected.
This morning, the Department of Health and Human Services (HHS) issued a new rule regarding the mandate, which had stipulated that virtually all health insurance plans were to cover myriad forms of contraception, with no point-of-service costs passed on to patients. Ever since it was adopted, the mandate had been the site of a religious freedom fight, as employers with faith-based objections to birth control argued that they shouldn’t be compelled to subsidize it.
Under the new interim rule, which takes effect immediately, a much wider group of employers will be eligible for religious exemptions from the mandate.
Previously, only churches, religious nonprofits, and closely held private companies could apply for exemptions. Under the revised rule, any nonprofit or for-profit employer, including academic institutions and publicly traded companies, can seek to opt out on moral grounds.
And whereas previously, exempted employers had to put up with an accomodation process under which insurers picked up the tab for employee birth control, this move is now optional.
HHS officials have told reporters that the rule will not change coverage for “99.9 percent of women.” It’s not clear that this is true—it assumes that only the entities currently suing over the rule will seek exemptions. In any event, “the new rule is almost certain to spark fresh litigation,” notesThe Washington Post.
Nicholas Bagley, a law professor at the University of Michigan, points out that “HHS can skip notice and comment [as it did here] only if it has ‘good cause’ to do so. ‘Good cause’ is a narrow exception, reserved for emergencies.” Bagley says he doesn’t think it will apply here, and he’d “bet a bunch of money that the courts won’t think so either.” So we’ll see if the revised rule survives.