Faced with setbacks on the legislative front, the Trump administration is going it alone on taking apart the Affordable Care Act piecemeal.
On Friday, the administration made one of its boldest moves yet, with two memos from multiple agencies that would dramatically curtail women’s access to birth control through their employers. The new regulations, effective immediately, would exempt all employers and insurers from covering or paying for coverage of contraceptives if they object “based on its sincerely held religious beliefs,” or have other “moral convictions” against covering such care.
The new rules are the latest development in a war that has gone on between the White House and religious institutions since the very genesis of the ACA in 2010. The text of the legislation does not mention an actual requirement that employers’ plans cover contraception in their required preventative services, but under the law’s discretion and the eye of the courts, birth control and women’s health services have been considered a standard part of that set. Employers were required to cover at least one of all of the 18 FDA-approved methods of birth control with no cost-sharing for the patient. While places of worship themselves were always exempted on the grounds of religious freedom, other religious entities or enterprises owned or operated by churches, like Catholic schools, Catholic hospitals, and other independent charities, were not.
The inclusion of those entities under the contraceptive mandate set off five years of Supreme Court cases and subsequent accommodations by the Obama White House. One major accommodation was that nonprofit religious entities that weren’t places of worship could refuse to cover contraceptive services through their own plans, but would still have to pay for the cost of that coverage through third-party or government insurers. Similar accommodations were granted for “closely-held for-profit entities” in the wake of the 2014 Burwell v. Hobby Lobby decision.
According to the Kaiser Family Foundation, about 10 percent of all eligible nonprofits have taken this accommodation, but several nonprofits, including those captured in the Zubik v. Burwell lawsuit that was remanded by the Supreme Court, wanted full exemptions, instead of accommodations.
The Trump administration’s new rule grants that wish and much more. According to a New York Times report Thursday, the White House has concluded that there is no way to accommodate every objector to the mandate, and that “application of the mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest.” But in creating such broad categories of employers that merely have religious or even moral convictions against providing contraceptive services, it opens the door for pretty much all employers to simply stop covering them and paying for them, with no alternatives. It leaves accommodations in place, but as optional measures to be taken by employers should they wish.
The new rules will probably result in a noticeable increase in the number of women who have to pay out of pocket again for contraceptive services. The regulation itself notes that “these final rules will result in some enrollees in plans of exempt entities not receiving coverage or payments for contraceptive services.” That might be an understatement. Half of all women receive their coverage through their employers, and the ACA’s mandate has reduced the percentage of women from ages 15 to 44 who have to pay for contraceptive coverage through their employer from 20 to 3.6 percent.
In addition to simply providing women with much more flexibility as to their birth-control options, the mandate also provides real health benefits. Early research indicated that lower costs mean that adherence to contraception is higher, and thus unwanted pregnancies might be avoided. Also, the law reduces total out-of-pocket spending by women and their families on health care and potential expenses for those pregnancies or for abortions.
While it’s unclear how many employers will cite religious or moral objections, exempting those already under accommodation and increasing that number when new objections are considered would mean at least thousands of women will have to pay for contraceptive services on their own—or forgo them.
These rules are part of a reinvigorated push by the Trump administration to flex its considerable regulatory authority to roll back Obamacare. With multiple repeal bills failing in the House and the Senate, the White House and the Department of Health and Human Services have always signaled that they would dismantle the program where they could.
This spring, HHS moved to cut the 2018 open enrollment period in half from 90 days to 45 days. In August, Vox reported that the department would reduce spending on outreach and advertising for the 2017 open enrollment period—stretching from November 1 to December 15—by 72 percent. In September, Buzzfeed reported that HHS regional directors were being reported not to attend states’ open enrollment events. And on Thursday, The Washington Post reported that Trump personally opposed plans from Republicans in Iowa to adjust risks and stabilize the state’s own marketplaces.
Today’s regulations are just another part of that effort. Even without the repeal savvy of former health secretary Tom Price, moves like the rollback of contraceptive care are carefully crafted in ways that will destabilize Obamacare, often by placing more cost burdens on those who can’t afford them, and by curtailing the law’s regulations on benefits and risk. Obamacare isn’t out of the woods by any stretch, and some of the early effects of the ramped-up war of attrition against it will be felt by women.
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