4 takeaways from HHS rollback of key contraception coverage provision

Oct 6 2017

On Friday, the Trump administration announced new regulations governing contraceptive coverage under the Affordable Care Act. The rules will make sweeping changes to the law's requirement that most employers provide coverage of birth control with no out-of-pocket costs to women.

The changes were hailed by religious groups, including the U.S. Conference of Catholic Bishops, which said it was "a return to common sense, long-standing federal practice and peaceful coexistence between church and state.” But others, including the National Women's Law Center, said they plan to file suit against the rules. The National Health Law Program said that the rules appeared "legally suspect."

Here are some frequently asked questions and answers about the new rules.

Q: What is the new policy?

Trump administration officials said they are significantly rolling back rules requiring many insurers to provide contraceptive coverage to women. Employers with a moral or religious objection to contraceptive services will be allowed to stop offering that coverage.

Under provisions of the Affordable Care Act, the Obama administration had issued rules requiring most plans to cover all contraception methods that have been approved by the Food and Drug Administration with no out-of-pocket cost to women. The provision does not cover plans that have a grandfathered status under the law.

That guarantee was whittled back through regulation and court actions to exempt some religious-based organizations, such as churches, and some privately held companies in which the owners have strong objections to contraception. Other nonprofit religious employers were offered an accommodation so that they didn't contract or pay for the insurance coverage for their workers.

The rules unveiled Friday expand those exemptions to any nonprofit organizations and for-profit companies with firm religious opposition, as well as health plans provided to students at colleges with a religious affiliation. A second rule extends an exemption to organizations and privately held companies that have moral objections.

If an employer doesn't have any moral or religious objections to contraception coverage, current ACA guidelines still apply. Federal policy for programs that offer free or subsidized coverage to low-income women also will not change.

The rules become effective as soon as they are published in the Federal Register, which is expected soon. View them online here and here.

Q: Who is covered by the ruling?

Exactly who will be affected is in dispute.

In a news release, the Department of Health and Human Services said that the rules "will not affect over 99.9 percent" of the 165 million women in the United States. The exemptions announced Friday, HHS said, "may impact only about 200 entities, the number that filed lawsuits based on religious or moral objections."

Groups that favor the ACA's contraception coverage say the impact will be far larger.

"The Trump administration just took direct aim at birth control coverage for 62 million women," Cecile Richards, president of the Planned Parenthood Federation of America, said in a statement. "With this rule in place, any employer could decide that their employees no longer have health insurance coverage for birth control."

Mara Gandal-Powers, a senior counsel at the National Women's Law Center, said that even though many employers will not change their coverage, women in some places could find it difficult to get the health care they need.

HHS estimated in 2015 that 55 million women were covered by policies that provide no-cost contraceptives. The number of women paying for contraceptives fell from nearly 21 percent in 2012 to fewer than 4 percent by 2014, according to the Kaiser Family Foundation.  (Kaiser Health News is an editorially independent program of the foundation.)

While some employers will be exempt from the ACA rules covering contraception, they may not be exempt from applicable state laws. Eight states currently have laws requiring contraceptive coverage at no cost to employees, while another 20 states have laws requiring coverage of prescription contraceptives with the option of asking employees to pay some of the cost. Those state laws still apply, said Laurie Sobel, associate director of women's health policy at the Kaiser Family Foundation.

Q: How have the courts ruled previously on the ACA and contraception coverage?

In 2014, the Supreme Court voted 5-4 to allow a key exemption to the health law's contraception coverage requirements when it ruled that closely held, for-profit businesses could assert a religious objection to the Obama administration's regulations.

The court's majority said that the companies that filed suit — Hobby Lobby Stores, a nationwide chain of 500 arts-and-crafts stores, and Conestoga Wood Specialties, a custom cabinet manufacturer — did not have to offer female employees all of the Food and Drug Administration-approved contraceptives as part of a package of preventive services that must be covered without copays or deductibles under the law. The companies had argued that several types of contraceptives violate their owners' religious beliefs.

The companies are family-owned, and they said that the health law's contraception requirement violated their religious views. While both employers' health plans covered some forms of birth control, they found some forms of emergency contraceptives objectionable, such as Plan B and Ella that can prevent a pregnancy if taken within a short window after unprotected sex. They said these contraceptive methods prevent a fertilized egg from implanting in the woman's uterus and therefore are a type of abortion.

In another lawsuit, religious groups, including the Little Sisters of the Poor, an order of Roman Catholic nuns, said that complying with an Obama administration accommodation for religious-affiliated groups violated their religious views. In May 2016, the Supreme Court sent that lawsuit back to the lower courts to see if a compromise was possible.

Q: How does the Obama administration's accommodation work?

The Obama administration's policy also did not apply to churches or houses of worship. And in response to protests from other nonprofit religious organizations — such as church-affiliated hospitals or schools — officials set up an accommodation that allowed those employers to not contract for contraceptive coverage as part of the insurance that they offered workers. Instead, the insurance plan that served their employees would provide coverage, at no cost, to the workers. Some of those groups, such as the Little Sisters of the Poor, objected to this setup and challenged the policy in court.