Executive Order Seeks to Release Employers from Requirement to Provide Free Contraceptives

By Allen Smith, J.D. Jun 2, 2017
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President Donald Trump's recent Executive Order Promoting Free Speech and Religious Liberty prompts government agencies to rewrite their regulations on the Affordable Care Act's (ACA's) mandate to provide birth control for free to employees who ask for it, and a draft of a rule that would allow an employer to request an exemption from the mandate is now under review.

The religious liberty part of the executive order, published May 4, would release religious universities and charities from the ACA's requirement to provide contraceptives for free, noted Amy Gordon, an attorney with McDermott Will & Emery in Chicago.

The Office of Management and Budget said May 23 that it was reviewing an interim final rule on the coverage of preventive services under the ACA—which includes contraception—to relax the requirement. The New York Times reported that women's rights groups would likely challenge the move.

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

The draft regulations would let any employer request an exemption from the ACA requirement based on moral or religious objections, according to Vox, which obtained a copy of the draft on May 31.

White House Deputy Press Secretary Sarah Sanders noted that the executive order also directs the IRS not to enforce the Johnson Amendment, which the IRS could use to deny or revoke a church's nonprofit tax-exempt status if the church endorses political candidates. "During the last eight years, Americans of all faiths have been under attack from a federal government that has targeted individuals and institutions just for following their faith," Sanders said. "The president was proud to take these important steps toward promoting two pillars of American society—free speech and religious liberty."

Contraception Provisions Opposed

The directive to federal agencies to explore religious-based exceptions to preventive health care coverage in the form of contraception "does cue up a potential future battle, but as of now the status quo has not changed," said American Civil Liberties Union (ACLU) Executive Director Anthony Romero. He said that the executive order satisfies "religious conservatives and kick[s] the can down the road on religious exemptions on reproductive health care services."

Louise Melling, deputy legal director of the ACLU, had the following reaction to the Vox article: "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."

Gordon said that the executive order was aimed at organizations like the plaintiffs in Zubik v. Burwell—charities with a religious mission—to release them from the requirement to provide contraceptives on a zero-cost basis.

Before Zubik, the Supreme Court held in its Burwell v. Hobby Lobby Stores ruling that the Department of Health and Human Services could not enforce the ACA's contraceptive coverage requirement against corporations whose owners believe that some contraceptives are abortifacients—devices or pills that result in abortion—and that making them available violated the owners' religious beliefs. 

The government said that if an entity were opposed to providing contraceptives in its group health plan, it could inform the insurer that it was objecting by filling out a form and the insurer would then cover the cost of the contraceptives. But the plaintiffs in Zubik maintained that this accommodation violated their religious beliefs because they still would be complicit in the provision of contraceptives.

Zubik reached the Supreme Court, but the court sent the case back to the lower courts with instructions that the parties be given the chance to identify and implement a compromise. The court did not express any views on the merits of the case and left unanswered whether the government's accommodation was lawful.

Gordon noted that even if an employer does not offer contraceptive coverage, affluent employees would be able to pay for contraceptives out of pocket. But contraception may be unaffordable for those living paycheck to paycheck, she noted.

The executive order is an "open-ended type of directive," she said, "giving the agencies carte blanche in how they propose a fix."

 

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