Final Rules Expand Exemption from ACA’s Contraceptive Mandate

Allen Smith, J.D. By Allen Smith, J.D. November 14, 2018

​The U.S. Department of Health and Human Services (HHS) issued two final rules Nov. 7 that exempt certain entities from the Affordable Care Act's (ACA's) contraceptive mandate if their opposition is based on religious or moral grounds. The rules are likely to be challenged in court, as have been previous HHS rules on this topic.

The ACA requires that group health insurance cover contraceptives. The rules will extend the exemption now available to places of worship to faith-based nonprofits, religious schools and private businesses. The final rules closely resemble interim proposals that were released in October 2017.

We've gathered articles on the final rules from SHRM Online and other trusted media outlets.

How Many Will Lose Coverage?

One rule concerns religious exemptions, while the other covers moral exemptions. The Trump administration predicted 127,000 women would lose access to free contraceptives such as birth control pills through the rules. These women work at roughly 200 entities involved in approximately 50 lawsuits over contraceptive coverage, it estimated in the interim rules. But critics of the rules predict more will be affected. Hundreds of religious hospitals, nursing homes and nonprofits may want to stop providing contraceptives, for example, said Tim Jost, emeritus professor at the Washington and Lee University School of Law. "There is no way to know how many women will be affected," added Alina Salganicoff, director of women's health policy at the Kaiser Family Foundation.


Rules Supported by Some, Challenged by Others

Religious freedom and pro-life advocates welcomed the final rules. "Pro-life organizations should not be forced into betraying the very values they were established to advance" and the religious exemption rule "will allow such freedom," said March for Life President Jeanne Mancini. But a spokesperson for California Attorney General Xavier Becerra said, "We're prepared to use all legal tools to challenge this rule that risks a woman's access to birth control." Pennsylvania Attorney General Josh Shapiro promised, "I will keep fighting every day to protect women's rights." And Michelle Banker, a lawyer with the National Women's Law Center, said the final rules are, "just as problematic as the interim final rules. And we will absolutely continue to challenge them in court."

(The Washington Post)

Interim Rules Blocked

Pennsylvania challenged the interim rules in a separate lawsuit that resulted in a federal district court in the state blocking the final rules in December 2017. The judge said the ACA did not permit such "sweeping exemptions." Becerra challenged the interim proposals on behalf of California—a successful effort joined by Delaware, Maryland, New York and Virginia. A week after the Pennsylvania decision, a federal district court in California also blocked the interim rules saying they would "transform contraceptive coverage from a legal entitlement to an essentially gratuitous benefit wholly subject to their employer's discretion." The Trump administration has appealed the decisions.

(The New York Times)

[SHRM members-only toolkit: Complying with and Leveraging the ACA]

Religious Private Corporations Already Had Some Rights

The Obama administration defined the religious exemption as limited to places of worship. The Supreme Court decided in 2014 in Burwell v. Hobby Lobby Stores that the Obama administration's HHS could not enforce the contraceptive coverage requirement against corporations whose owners believe that four of the contraceptives induce abortion and that making them available violated their religious beliefs. As applied to closely held corporations—owned by one family and not publicly traded—the regulations imposing the contraceptive mandate violated the Religious Freedom Restoration Act, the high court decided. After the decision, the Obama administration revised the rules, providing an accommodation process to closely held corporations to avoid requiring them to directly provide contraceptive coverage. Instead, group health plans would provide it. Religious nonprofits then challenged this accommodation, which already was available to them, in another case that went to the Supreme Court, Zubik v. Burwell. The nonprofits argued that the accommodation process made them complicit in the use of medications they opposed for religious reasons. The court did not resolve the issue but sent the case back to the lower courts, urging the parties to settle.

(Deseret News and SHRM Online)

Exemptions Still Have Limits

The Trump administration's religious and moral exemptions do not apply to government programs that provide subsidized or free contraceptive coverage to low-income women, such as through community health centers. The rules do not exempt public companies with nonreligious moral objections or plans insured through grandfathered coverage existing prior to the Affordable Care Act. The rules will take effect 60 days after they are published in the Federal Register.

(The Salt Lake Tribune and HHS)



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