Finally pulling the trigger on one of the longest-running questions about administration healthcare policy, President Trump on Friday officially rolled back the Affordable Care Act's contraceptive mandate. The action takes effect immediately.
The rollback exempts a wide range of employers from the requirement that they offer birth control to their employees without co-pays or deductibles. It's a sop to religious ideologues in the Republican base, and a flagrant attack on women's reproductive health rights, and it's abetted by a clutch of anti-contraception ideologues installed at the Department of Health and Human Services. They've been pushing to narrow women's birth control choices for years with widely debunked pseudoscientific claims that birth control produces mental health problems and breast cancer, that it doesn't work and that it promotes promiscuity.
According to a notice published Friday in the Federal Register, the new policy is cloaked in claims of "religious freedom." The notice says its aim is to "protect religious beliefs for entities and individuals" with objections to contraceptive coverage, as well as "moral convictions" against contraceptives. It expands the exemption well beyond houses of worship and religious nonprofits. The policy goes well beyond the exemption carved out by the Supreme Court, in its 2014 Hobby Lobby decision, for privately held for-profit companies whose owners claimed religious or moral scruples against birth control.
The proposed rule has been floating around in public for months, awaiting Trump's signature. That happened Friday. The new policy applies to any employer claiming a religious or moral objection to offering contraceptive coverage, including even publicly traded for-profit corporations with no evident religious or moral character. Those claiming moral scruples won't have to prove or validate them in any way.
"We now believe the Government's legitimate interest in providing for contraceptive coverage do not require us to violate sincerely held religious beliefs," the government notice says. "We do not possess interests that require us to violate sincerely held moral convictions."
Nor does the new policy provide a work-around to protect employees from losing their contraceptive coverage, as did the Obama administration. President Obama's solution was to take the funding of contraceptive coverage out of the hands of the objecting employers and transfer it to their insurers, who would then be reimbursed by the government. The new rule is a flat exemption, with no alternative arrangement to provide birth control to employees. It's aptly described as a "gutting [of] the Affordable Care Act's contraceptive mandate," in the words of the patient advocacy coalition Protect Our Care.
Reaction to the rollback was almost instantaneous. The American Civil Liberties Union and Massachusetts Attorney General Maura Healey separately announced lawsuits to block the rule. The ACLU's case rests on equal protection grounds and the Constitutional separation of church and state. "The federal government cannot authorize discrimination against women in the name of religion or otherwise," ACLU senior staff attorney Brigitte Amiri said in a written statement. Other lawsuits are certain to follow.
The mandate targeted by the new policy is a highly successful provision of the Affordable Care Act. The mandate to provide contraceptives without cost-sharing sharply reduced women's out-of-pocket spending on oral contraceptives; fewer than 5% of women of reproductive age had any out-of-pocket spending on those medications at all in 2014, down from more than 20% before the ACA mandate took effect in 2012. The mandate may also have added impetus to a sharp decline in unintended pregnancies, especially among teens and young women, which has been unfolding since the 1980s.
The Department of Health and Human Services tried to sugarcoat the impact of the rule change Friday. The agency asserted that it "will not affect over 99.9% of the 165 million women in the United States." That estimate was based on the assumption that it would affect only 200 employers — but that's merely the number of employers who have challenged the contraceptive mandate in court based on religious or moral scruples. The breadth of the Trump rollback may encourage hundreds, even thousands more employers to drop contraceptive coverage, given the ease with which the rule allows a change in coverage to be executed.
Legal experts say the rule change is vulnerable to legal challenge, despite the White House's wishes. Because it was published as an "interim final rule," the administration claims, it can be effective immediately. That may not be so, as Nicholas Bagley of the University of Michigan Law School observes.
Normally, a rule change of this magnitude must go through lengthy comment and hearing procedures spelled out in the Administrative Procedures Act. Those procedures could delay the rule for a year or more. Trump attempts to circumvent the act by claiming there's "good cause" to implement the rule now. Among other things, the White House says delaying the exemption could "increase the cost of health insurance" for some employers, though it can't say how many would be affected.
Bagley doubts that's good enough. "Good cause exists when notice and comment is 'impracticable, unnecessary, or contrary to the public interest,'" he wrote. "That's a flexible standard, but the courts have said that it 'is to be narrowly construed and only reluctantly countenanced,' with its use 'limited to emergency situations.'"
Procedurally, Bagley writes, "the administration still hasn't offered a cogent explanation for why it thinks it can amend an existing rule, and adopt a new one, without going through notice and comment. Substantively, HHS doesn't have the authority to excuse employers from complying with a statute because they have moral objections."
He adds that the government's Health Resources and Services Administration, which (at the direction of Congress) wrote the guidelines establishing the contraception mandate under the Affordable Care Act, is a health agency and "isn't equipped to decide when moral concerns are sufficiently grave as to require an exemption from a generally applicable law." That undermines Trump's claim that the HRSA guidelines are sufficiently broad to allow the exemption.