Trump Administration Rolls Back ACA's Birth-Control Coverage Mandate

Commits to protecting religious liberty for individuals and businesses

Stephen Miller, CEBS By Stephen Miller, CEBS October 6, 2017
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updated on Dec. 22, 2017

Update:
District Courts Block Trump's Contraceptive Exemption Rules

In December 2017, two U.S. district court judges issued separate rulings against the Trump administration's rules allowing businesses or nonprofits to obtain exemptions on moral or religious grounds from the requirement that employers subject to the Affordable Care Act must provide no-cost contraceptive coverage to employees.

On Dec. 21, a U.S. district judge in Oakland, California entered a nationwide preliminary injunction against the October 2017 rules while a lawsuit challenging their legality proceeds.

The decision followed a ruling from a federal judge in Philadelphia on Dec. 15 that held the rules to be substantively improper.

The U.S. Justice Department defended the rules in court. A spokeswoman said that the agency disagreed with the rulings and was evaluating its next steps.


The Trump administration will allow employers to claim a religious or moral objection to an Affordable Care Act (ACA) requirement that employer-provided health benefits include no-cost contraception coverage for women, the White House announced on Oct. 6. A separate memo from Attorney General Jeff Sessions outlines a broad defense of religious liberty for individuals and businesses. These announcements were praised by conservatives and denounced by liberals, and are expected to spur future litigation. 

Two Interim Final Rules

The Departments of Health and Human Services, Labor and Treasury jointly issued two interim final rules that take effect immediately—one outlining how an employer could claim an exemption from the contraceptive mandate for religious beliefs, the other outlining an exemption for sincerely held moral convictions. The new policy reignites a fierce battle over one of the health care law's requirements to provide Food and Drug Administration-approved contraception at no cost—a requirement wrapped up in legal challenges for more than five years.
(Politico

Groups Line Up to Defend and Challenge Administration's Actions

Several religious groups, which battled the Obama administration for years over the controversial requirement, welcomed the action. Women's rights organizations and some medical professionals said it was a blow to women's health, warning that it could lead to a higher number of unintended pregnancies.
(Washington Post

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

Sessions Issues Separate Guidance on Protecting Religious Liberty

In a separate action, Attorney General Jeff Sessions on Oct. 6 issued a guidance memo instructing federal agencies and attorneys to avoid actions that would unduly burden people from practicing their faith. The memo directs federal agencies to observe 20 principles of religious liberty, such as "Americans do not give up their freedom of religion by participating in the marketplace" and "Freedom of religion extends to persons and organizations…even businesses." The policy does not create new law but rather interprets how the government should construe the Constitution and existing federal law. Critics said the memo could provide a loophole to ignore federal bans on discrimination against women and LGBT people.
(BuzzFeed

Moves in Line with Trump's Executive Order

In June, President Donald Trump issued an Executive Order Promoting Free Speech and Religious Liberty, which prompted government agencies to explore religious-based exceptions to the ACA's contraceptive mandate. Louise Melling, deputy legal director of the American Civil Liberties Union, said that "any rule that allows employers to deny contraceptive coverage to their employees is an attempt at allowing religion to be used as a license to discriminate. We'll see the Trump administration in court if they try to follow through on these plans."
(SHRM Online)

CMS Issues Memorandum on Contraceptive Exemption Notices

On Nov. 30, 2017, the federal Centers for Medicare & Medicaid Services (CMS) issued a memorandum that addresses notice requirements relating to exemptions from the contraceptive coverage mandate for nongrandfathered health plans sponsored by employers with religious or moral objections to providing certain contraceptive coverage as required by the Affordable Care Act.



 

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