U.S. seeks more opt-outs for birth control coverage

WASHINGTON — The Trump administration is expected to soon issue regulations that would expand religious and moral exemptions for covering birth control in employer health insurance plans, a move that critics say would limit women’s access to contraception.

The rules would likely roll back a controversial Obamaera mandate in the Affordable Care Act that required employers to cover birth control. The regulations were filed last week for review with the Office of Management and Budget, indicating that the administration is in the final stages of issuing the expanded exemptions.

The exact details of the exemptions, and when they would take effect, remain unclear. But women’s health advocates are bracing for a legal fight. They expect the rules to mimic earlier regulations enacted by the Trump administration last year before being blocked by federal judges.

The rules allowed nearly any employer — nonprofit or for-profit — with a religious or moral objection to opt out of the Affordable Care Act provision requiring the coverage of contraception at no cost for the employee. The rules vastly expanded which companies could be exempt from the mandate and why, including a broad exemption for a “sincerely held moral conviction” not based in any particular religious belief. Perhaps most significantly, it required employers to provide no other accommodations for employees seeking birth control coverage.

The Trump administration rules were “nothing short of radical,” American Civil Liberties Union Deputy Legal Director Louise Melling said in a phone call Thursday with reporters. “There’s no backstop to ensure coverage for employees.”

Before Trump took office, the Obama administration was facing scores of lawsuits from organizations, such as Hobby Lobby, arguing that the free-contraception mandate violated their religious beliefs. The mandate required employers to cover the full range of contraceptive services approved by the Food and Drug Administration, including emergency contraception and IUDs, without cost-sharing.

After a Supreme Court decision in the Hobby Lobby case, the Obama administration allowed religiously-affiliated nonprofits and certain private, for-profit corporations to opt out of the coverage, as long as their employees were provided with an accommodation.

Then, in October 2017, the Trump administration issued its directive significantly expanding those exemptions.

Several states and advocacy groups quickly sued, arguing in part that the Department of Health and Human Services enacted its rules without the notice and comment period required by federal law.

In December 2017, federal judges in California and Pennsylvania issued preliminary injunctions blocking the rules from taking effect. The Trump administration appealed both injunctions and the cases are ongoing; a hearing in the California case is scheduled today.