- Sarah Schmalbruch/INSIDER
- On November 7, the Trump administration announced two rules that will allow some employers to stop providing insurance coverage of birth control for “religious or moral” reasons.
- The rules are scheduled to take effect in January.
- If an employer chooses to stop offering birth control coverage, they’re required to inform their employees about that change.
- For now, because of some outstanding court cases, “most people should still be getting their birth control coverage without out of pocket costs,” one legal expert told INSIDER.
The Trump administration finalized two rules last Wednesday that will allow certain employers and institutes of higher education to stop providing insurance coverage of birth control for “religious or moral” reasons.
Because of the Affordable Care Act, insurance plans have to fully cover certain services classified as “preventive.” Under the Obama administration, birth control was defined as one of those preventive services, the New York Times reported last month. That means that most insurance plans cover FDA-approved birth control – including the pill, patch, ring, shots, implant, or IUD – for $0 out of pocket. This is sometimes referred to as the birth control mandate.
There are some exceptions to the mandate: Certain religious employers, like houses of worship, don’t have to cover contraception if they have religious objections to doing so, according to the Healthcare.gov website.
But the two new final rules, announced in a statement from the Department of Health and Human Services (HHS), will allow more employers to get exemptions from the mandate if they have religious beliefs or moral objections to providing birth control coverage.
Some women’s and civil rights groups have condemned the rules as an attack on women’s health.
“These rules are dangerous, and not what the vast majority of the American people want,” Dawn Laguens, Executive Vice President, Planned Parenthood Federation of America, said in a statement. “Women will remember this attack on their basic health care.”
But HHS has characterized the move as a “protection of conscience rights.”
“No American should be forced to violate his or her own conscience in order to abide by the laws and regulations governing our healthcare system,” HHS spokesperson Caitlin Oakley said in a statement provided to INSIDER. “These actions affirm the Trump Administration’s commitment to upholding the freedoms afforded all Americans under our Constitution.”
INSIDER spoke with Mara Gandal-Powers, director of birth control access and senior counsel for reproductive rights and health at the National Women’s Law Center (NWLC) to learn more about the potential impacts of the rules. Here’s what anyone taking birth control should know about them.
The Trump administration released similar “interim” rules last fall
- Anukool Manoton/Shutterstock
Initially, religious houses of worship were the only employers that were fully exempt for the birth control mandate, Vox reported last year. Then, in 2014, the Supreme Court ruled that small, private business with religious objection to birth control could also request an exemption from the mandate. (That was the high-profile Hobby Lobby case.)
Then, in October 2017, the Trump administration released two “interim final rules” that opened up the exemption option to more employers. The first rule allowed employers and universities to opt out of providing birth control coverage because of religious beliefs. The second allowed them to do so because of moral beliefs.
These new rules finalize the interim ones announced last year, CNN reported Wednesday. Gandal-Powers said the interim and final rules are “similar” to one another.
The first of the final rules allows employers and institutes of higher education to stop providing birth control coverage “on the basis of sincerely held religious beliefs,” according to an HHS fact sheet. The second final rule allows them to do so if they have moral objections to offering the coverage.
But there are a few important exceptions to note. First, government entities aren’t eligible to use either rule to stop providing birth control coverage. Second, publicly-traded businesses are not eligible for the moral exemption (though they can use the religious one).
The new rules are scheduled to take effect 60 days after they are published in the Federal Register, according to the HHS. As of this writing, the rules are set to be published on November 15, meaning they would go into effect in mid-January.
The interim rules were blocked in court, so most people’s birth control should still be covered right now
After the interim rules were announced last October, the Trump administration was challenged with a number of lawsuits, Gandal-Powers said.
In two cases – one brought by the attorney general of California, and one brought by the attorney general of Pennsylvania – federal judges issued a preliminary injunction against the interim rules, Politico reported. That means they were blocked from taking effect.
Because these preliminary injunctions are still in place, most people who take birth control should still be getting theirs for free through their insurance, Gandal-Powers explained.
“We want to make sure folks know that most people should still be getting their birth control coverage without out of pocket costs,” she said.
But now, with the release of the final rules, it’s not totally clear what will happen.
“We are sort of a wait-and-see mode,” Gandal-Powers added.
The NWLC thinks it’s “likely” the judges in the California and Pennsylvania cases will extend the preliminary injunctions because the interim and final rules are “substantially similar,” Gandal-Powers said. That would mean that the new final rules would not go into effect as scheduled.
“But if the injunctions aren’t [extended,] then the rules would go into effect January 14th and people could start losing birth control coverage,” Gandal-Powers said.
In a video statement on Twitter, Brigitte Amiri, deputy director of the American Civil Liberties Union (ACLU) Reproductive Freedom Project, also expressed optimism that legal challenges will block the new final rules.
“This final rule takes effect in about 60 days unless a court blocks it further and we are hopeful and optimistic that the courts will do just that,” she said.
Yesterday, the Trump administration gutted the Affordable Care Act's requirement that insurance plans cover birth control.
— ACLU (@ACLU) November 8, 2018
Employers have to make it clear if birth control coverage is going to change
Under the new rules, employers who want to stop providing birth control coverage are “not required to file notices” about their decision, an HHS fact sheet said, though they would be at risk for fines and lawsuits if they “improperly” claim exemption.
But if an employer wants to exclude all or some birth control benefits from its health plans, they have to make that clear in documentation provided to employees, according to the full text of both rules.
“For any kind of coverage that you have, if your employer is going to be taking it away, you have a right to be notified and you should get notified,” Gandal-Powers said. “If you’re worried about your employer and this potentially impacting you, really pay attention to the letters or the notices [employers provide], because if it’s going to happen, you will get a notice.”
It’s not clear how many people will be affected
- Sarah Schmalbruch/INSIDER
In its statement, the HHS said it estimates that the exemptions allowed by the new rules would affect approximately 6,400 women working for no more than 200 employers.
But others have said the potential impact of the rules is unclear, because many more employers might elect to drop birth control coverage.
Tim Jost, emeritus professor at the Washington and Lee University School of Law, told CNN there are hundreds of Catholic hospitals, nursing homes, and nonprofit organizations that may opt to stop providing contraceptive benefits, for example.
“We know that it’s really hard to estimate these numbers … but we know that it’s going to be more than that [HHS estimate], based on the number of lawsuits that have happened in the past over this,” Gandal-Powers said. “We think it will be in the hundreds of thousands.”
Amiri offered a similar estimate in her video statement on Twitter.
“If the rule were allowed to take effect it could rob hundreds of thousands of women of their birth control coverage,” Amiri said.
For now, though, the full impact of the rules (and the outcome of the legal challenges against them) remains unknown.
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