In October 2017, the Trump administration took long-expected steps to undermine the Affordable Care Act’s (ACA) contraceptive coverage guarantee.1,2 The pair of regulations it issued — which took effect immediately, before the standard public comment period — implemented part of President Trump’s May 2017 executive order on “religious liberty.”3 The regulations leave the coverage guarantee in place, but greatly extend exemptions for employers, schools, individuals, and insurers that express religious or moral objections to some or all contraceptive methods and services.

As a reminder, the ACA provision requires that private health insurance plans in the United States cover dozens of preventive care services without copayments, deductibles, or any other patient out-of-pocket costs. This applies to plans sold to employers, schools or individuals, or those that are offered by employers that self-insure. The list of covered services includes 18 distinct contraceptive methods used by women, along with contraceptive counseling, services that are needed to start or stop a method, and follow-up care.4 The largest exception to all of these coverage requirements is for “grandfathered” plans, which are plans that predated the ACA and have not changed substantively; just 17% of covered workers were enrolled in these grandfathered plans in 2017.5

Beyond that, the Obama administration had granted an exemption from the contraceptive coverage requirement to a limited group of religious employers, mainly houses of worship. Other nonprofit employers and closely held for-profit employers that have religious objections were given an “accommodation,” which allowed the employer to refuse to pay for contraceptive coverage, arrange for it, or even talk about it, but still ensured that employees and their dependents could receive that coverage from the insurance company directly. In response, dozens of companies filed lawsuits demanding broader exemptions on religious and, in a few cases, moral grounds.6

The new Trump administration regulations were designed to negate all of those lawsuits. Any employer with a religious objection now may exclude some or all contraceptive methods and services from the health insurance plans it sponsors. Almost any employer (as long as it is not publicly traded) with a moral objection may do the same. Colleges and universities have the same options for the health plans they sponsor for students. Employers and schools still may use the accommodation, but that is optional. The regulations also provide for limited exemptions for religious and moral reasons for individuals and insurance companies.

As of mid-November 2017, only a handful of employers and schools had publicly announced that they would make use of the new exemptions, and the potential impact of the Trump regulations was unclear. The clearest impact is for the employees, students, and dependents of the employers and schools that had sued the Obama administration. Shortly after the new regulations were issued, the Trump administration began settling those lawsuits and granting the plaintiffs a permanent exemption — even if the new regulations are eventually reversed.7

Less clear is what will happen with the numerous employers and schools that had been making use of the old accommodation: That includes 3% of U.S. nonprofits and 10% of the largest nonprofits, according to a 2015 study.8 If those thousands of employers and schools decide to claim a full exemption, their employees, students, and dependents would lose contraceptive coverage.

Finally, under the old rules, publicly traded companies and entities with moral objections were not eligible even for the accommodation, but now may claim full exemptions. How many will do so is a complete unknown. Yet, without clear standards or procedures for claiming an exemption and without any mechanisms of oversight or methods that affected employees and students could use to appeal a claim, the new regulations offer considerable potential for abuse.

The possible harm of the new regulations might be mitigated by several factors. Notably, more than half of the states have their own contraceptive coverage requirements, and some of the most recent state laws echo the federal requirement by covering the full range of methods and barring out-of-pocket costs.9 State laws cannot affect plans that are offered by employers that self-insure, but these protections will matter for people enrolled in other health insurance plans. Moreover, schools and employers will face pressures, both internal and external, to maintain contraception coverage, and might have financial incentives to help employees avoid the costs and disruption of unplanned pregnancies.

Finally, the regulations themselves could be changed or reversed. Although the regulations took effect immediately, the Trump administration still is required to offer a public comment period (closing on Dec. 5, 2017); however, if the administration does make changes in response to public comments, it seems more likely to expand the exemptions than to narrow them. Another potential avenue for change is via the courts: As of mid-November 2017, at least eight lawsuits had been filed against the new regulations, including two cases in which state attorneys general have requested preliminary injunctions.

(Editor’s Note: Adam Sonfield’s employer, the Guttmacher Institute, filed a declaration in support of one of those lawsuits.)

REFERENCES

  1. U.S. Departments of the Treasury, Labor Health, and Human Services (HHS). Religious exemptions and accommodations for coverage of certain preventive services under the Affordable Care Act. Fed Reg 2017 82:47,792-47,835.
  2. U.S. Departments of the Treasury, Labor, and HHS. Moral exemptions and accommodations for coverage of certain preventive services under the Affordable Care Act. Fed Reg 2017; 82:47,838–47,862.
  3. Office of the Press Secretary, The White House. Presidential executive order promoting free speech and religious liberty. May 4, 2017. Available at: http://bit.ly/2pDOoXq. Accessed Nov. 21, 2017.
  4. Health Resources & Services Administration. Women’s Preventive Services Guidelines, 2017. Available at: http://bit.ly/2irrzlT. Accessed Nov. 21, 2017.
  5. Kaiser Family Foundation (KFF), Health Research and Educational Trust and NORC at the University of Chicago. Employer Health Benefits. Menlo Park, CA: KFF, 2017.
  6. American Civil Liberties Union. Challenges to the federal contraceptive coverage rule. Available at: http://bit.ly/2zbKz2m. Accessed Nov. 21, 2017.
  7. O’Connor E, Tillman Z. The Trump administration just settled more than a dozen lawsuits over Obama’s contraception mandate. Buzzfeed News Oct. 23, 2017. Available at: http://bzfd.it/2AX1iDH. Accessed Nov. 21, 2017.
  8. Sobel L, Rae M, Salganicoff A. Data Note: Are nonprofits requesting an accommodation for contraceptive coverage? KFF Data Note. Menlo Park, CA: KFF, 2015.
  9. Guttmacher Institute. Insurance coverage of contraceptives. Available at: http://bit.ly/2yMusne. Accessed Nov. 21, 2017.