Elections Bring Renewed Challenges for Reproductive Rights
The November 2018 elections shook up both Washington, DC, and the political landscape for sexual and reproductive health and rights. Meanwhile, the Trump administration did not wait even a full day after the elections before renewing its attacks on health insurance coverage of abortion and contraception and on the Title X family planning program.
With the House of Representatives changing hands, supporters of reproductive rights in that chamber now will be positioned to better protect against anti-abortion and anti-contraception policies. They will have more leverage to block legislative attacks on perennial targets, including the Affordable Care Act (ACA), Medicaid, Title X, Planned Parenthood, abortion rights, and contraceptive coverage. The new House leadership also is gearing up to engage in oversight of the Trump administration on a range of issues, which will include holding public hearings, subpoenaing testimony from administrative officials, and demanding the release of relevant administrative records.
By contrast, the Senate leadership will be working with an increased majority and will have new opportunities to advance its socially conservative agenda. Notably, Republican Sens. Susan Collins (ME) and Lisa Murkowski (AK) likely will have less sway than before; the pair frequently have broken with other members of their party in voting to support family planning programs at home and abroad, protect abortion rights, maintain federal funding for Planned Parenthood, and uphold the ACA. Moreover, the larger majority will make it easier for President Trump to secure Senate confirmation of cabinet members, other high-ranking federal officials, and federal judges, potentially including new members of the Supreme Court. That will make it easier for the president to advance his agenda over the next two years and, through the judiciary, for many years to come.
The day after the election, the Trump administration announced a proposed rule further restricting private abortion coverage in the ACA marketplaces.1,2 Twenty-six states bar abortion coverage in marketplace plans, but in the remaining states, marketplace plans can cover abortion in cases beyond rape, incest, or life endangerment if they take required steps to ensure the procedure is paid for with private premium dollars, and not federal tax credits and subsidies. (Read more; see the Contraceptive Technology Update November 2018 column, “Conservatives Work to Bar Private Coverage of Abortion,” at .) The new rule would make those steps more burdensome for insurers and consumers by requiring two entirely separate monthly bills: one for the bulk of the health insurance policy, and a second for the minimal charge associated with abortion coverage. (Currently, insurers can separate those two payments on their own, without requiring consumers to do anything.) The proposed rule would create a situation in which consumers could risk losing their insurance coverage altogether if they misunderstand and fail to pay the separate fee for abortion coverage. This possibility and the additional costs and burdens of compliance may lead some insurers to drop abortion coverage entirely.
On the same day, the Trump administration also finalized a pair of regulations that vastly expand organizations’ ability to deny employees, students, and dependents insurance coverage for contraceptive counseling, services, and supplies.3 The rules are substantively the same as the interim rules issued in October 2017. (Get more information; see the January 2018 column, “New Rules Undermine Federal Contraceptive Coverage Guarantee,” at .) As before, the ACA’s contraceptive coverage guarantee is still in effect, but these regulations expand the pool of entities that may opt out, allowing any nongovernmental employer or university to claim a religious exemption or, in most cases, a moral exemption. The regulations fail to offer guardrails to prevent abuse, such as standards for how an organization might establish that it has a religious or moral objection, or a mechanism for employees or students to challenge that claim. Several states and organizations challenged the interim rules last year, and courts in California and Pennsylvania have enjoined them nationwide. As of mid-November 2018, it is not yet clear how the final rules will complicate those and other ongoing lawsuits, but it does seem clear that the lawsuits will continue.
Also on Nov. 7, 2018, the Trump administration released the FY 2019 funding opportunity announcement for Title X family planning service providers.4 As was the case with the previous funding announcement, the administration seems to be advancing some of its ideological priorities within the Title X program. (Read more about the issue; see the July 2018 column, “With Funding Announcement, Trump Begins Reshaping Title X,” at .) This includes potentially reshaping the Title X provider network by disadvantaging reproductive health-focused providers and leaving the door open for sites like anti-abortion counseling centers; pushing harmful abstinence-only-until-marriage messages to adolescents; and potentially interfering with young people’s ability to obtain care confidentially. Unlike in the previous funding announcement, the administration is directly addressing the need for Title X projects to offer clinical services and hormonal methods of contraception, and to adhere to national guidelines for the provision of high-quality family planning services put forward by the Centers for Disease Control and Prevention and the Office of Population Affairs (which administers Title X). Applications were scheduled to be due Jan. 14, 2019, with projects slated to start April 1.
- Centers for Medicare and Medicaid Services. Patient Protection and Affordable Care Act; Exchange program integrity. 83 Fed Reg 56,015 (Nov. 9, 2018).
- U.S. Departments of the Treasury, Labor and Health and Human Services (HHS). Religious exemptions and accommodations for coverage of certain preventive services under the Affordable Care Act. 83 Fed Reg 57,536 (Nov. 15, 2018).
- U.S. Departments of the Treasury, Labor and HHS. Moral exemptions and accommodations for coverage of certain preventive services under the Affordable Care Act. 83 Fed Reg 57592 (Nov. 15, 2018).
- U.S. Department of Health and Human Services. Announcement of availability of funds for Title X family planning services grants, PA-FPH-19-001. Available at: . Accessed Nov. 27, 2018.
The November 2018 elections shook up both Washington, DC, and the political landscape for sexual and reproductive health and rights.
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