The Trump administration on Friday morning officially undermined the popular Affordable Care Act (ACA) birth control benefit, which widely guaranteed health insurance coverage of contraception without a co-pay.
An estimated 62.4 million cisgender women and an untold number of transgender and gender nonconforming people rely on the benefit, according to National Women’s Law Center (NWLC) estimates.
There is a clear pattern emerging in the Trump administration’s crafting of policy. In this case, it is to announce with great bluster repealing the birth control benefit in a Rose Garden ceremony flanked by nuns via an executive order that, legally speaking, did nothing. Administration officials then delayed as much as possible the litigation surrounding that proclamation while the administration figures how it can legally execute what it just claimed to do: end contraceptive coverage and return to discriminatory health insurance coverage.
Civil rights organizations, including, so far, Americans United for Separation of Church and State and the American Civil Liberties Union, have promised litigation in response.
What does this mean for you?
The U.S. Department of Health and Human Services (HHS) Friday morning announced two rules “protecting the conscience rights of all Americans.” HHS outlined details of the rules in the press release but did not link to the text; a soon-to-be-published 163-page version of a religious exemption and a 100-page version of a moral exemption are available via the Federal Register.
Effective immediately under what’s known in the regulatory realm as interim final rules, any employer can claim a religious or a moral objection to providing contraceptive coverage in your insurance—at best, leaving people on the hook for the cost of the co-pay and at worst, the cost of the medication or device itself. Colleges and universities can use the objection to get out of providing health insurance to their students and employees, according to a New York Times preview of the rules.
The administration claims the new rules are limited in scope and would not affect most employees and others who rely on the benefit, though the language of the rules does not clarify where the administration is getting data to support that claim. The text estimates “no more than approximately 120,000 affected women”—a lowball figure, to say the least, from an administration that has surrounded itself with public figures hell-bent on eradicating and even re-criminalizing contraception.
There are two interim final rules for “entities and individuals” that object to providing contraception. The first rule outlines a religious exemption and the other, a new exemption “on the basis of moral conviction,” a significant expansion from the Obama era and any legal precedent under the Religious Freedom Restoration Act (RFRA). Together, the rules allow businesses to return to discrimination in doling out health-care benefits according to gender.
The price tags for common contraceptive methods range from up to $50 per month for birth control pills to $1,000 for an intrauterine device (IUD), according to a Planned Parenthood Federation of America guide. IUDs, one of the most effective forms of long-acting reversible contraceptives, may reach well over $1,000, accounting for insertion by a health-care provider, Slate’s Christina Cauterucci reported. If the Trump administration succeeds with its rule change, patients could face those expenses in full.
And you might not have a doctor to speak to about contraception at all.
Unraveling the birth control benefit in the ACA, also known as Obamacare, could interfere with your ability to even talk to your doctor about the best options for you. The benefit applies to “contraceptive methods and counseling,” meaning that you may now have to cover the cost of a doctor’s appointment to weigh the choice between methods.
The logic underpinning the Trump administration’s new rules relies, in part, on blatant slut shaming. The text of the rules claims that “among some populations,” the birth control benefit “affect[s] risky sexual behavior in a negative way.”
How did this happen?
The statutory text of Obamacare requires health plans in the individual and small group markets to cover a set of ten categories of “essential health benefits,” including preventive services like contraceptives. Another part of the statute, the Section 2713 Women’s Health Amendment, requires most private insurance plans, including employer plans, to fully cover the costs of what are known as “women’s preventive services,” though transgender and gender nonconforming people rely on these services, too.
That’s where federal regulations enforcing Obamacare by defining the women’s preventive services guidelines come in. The nine services, from contraception without co-pay to breastfeeding services and supplies, cervical cancer screenings, and more, live within the Health Resources and Services Administration, a subagency of HHS. And they remained exposed to a regulatory war on women’s health-care benefits from an avowedly anti-choice administration.
HHS and other agencies with a stake in enforcing the birth control benefit only had to write the new rules undoing it. Together, HHS, the U.S. Department of Labor, and the U.S. Department of the Treasury in May leaked a draft interim final rule that also would have assumed the force of law right away rather than at the end of the notice-and-comment period typical under the federal rule-making process. The rules issued today take the form of an interim final rule.
The unusual move could strengthen legal challenges to the administration.
6/ So what’s going on? Why would HHS expose its rules to an obvious legal challenge, one that the challengers are likely to win?
— Nicholas Bagley (@nicholas_bagley) October 6, 2017
But ultimately, the Trump administration could get the rules while proving to far-right evangelicals how far it was willing to go.
9/ Refusing to adhere to procedural niceties is a costly way of signaling that commitment. “We care so much we’ll even ignore the law.”
— Nicholas Bagley (@nicholas_bagley) October 6, 2017
Reproductive rights advocates long expected and feared that former HHS Secretary Tom Price, who believed “there’s not one” woman who can’t afford birth control, would decimate the birth control benefit. Although Price was forced to resign from the agency a week ago today after a mounting charter flight scandal, his ethos lives on. Prior to his resignation, Price had instructed HHS to set its sights on both the birth control benefit and other parts of Obamacare that offer legal protections for LGBTQ people.
Matt Bowman, former senior legal counsel for the Alliance Defending Freedom and a senior legal adviser at HHS, served as a “principal author” of the rules out today, according to the New York Times preview.
HHS remains stacked with even more officials who tout failed abstinence-only education and distort or deny the scientifically proven efficacy of birth control. Former Americans United for Life CEO Charmaine Yoest, a top official, falsely claims that intrauterine devices (IUDs) have “life-ending properties.” Teresa Manning, the notorious birth control foe nevertheless charged with administering Title X funds to ensure people with low incomes can access family planning services, claims that “family planning is something that occurs between a husband and a wife and God” and isn’t a matter for the federal government.
Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma, a candidate for Price’s job, stood beside President Trump as he signed an executive order delivering the final blow to Title X federal family planning protections for people with low incomes. Verma’s CMS pitched into the initial draft counter-regulation, along with Treasury’s Internal Revenue Service and Labor’s Employee Benefits Services Administration. The text of the new rules listed the same co-conspirators.
Complicated, right? We said it once, and we’ll say it again: The Trump administration is waging a regulatory war on women’s health-care benefits through the federal agencies—an arena even less transparent than the U.S. Congress.
Agency heads could inflict further damage by redefining or eliminating the 18 U.S. Food and Drug Administration-approved forms of contraceptives. The HHS press release flat out said the new rules target “contraceptive/abortifacient services,” and HHS officials dishonestly claim IUDs are so-called abortifacients.
Who else is responsible?
Some key players we know were in the room discussing the new rules include religious insurers and private attorneys representing religious advocacy groups, along with representatives from the Heritage Foundation, the conservative think tank, and the First Liberty Institute, which bills itself as “largest non-profit law firm solely dedicated to protecting religious freedom for all Americans.” We know this because the administration published lists of attendees for each of the six meetings held prior to finalizing the rules.
Administration officials met with representatives from the American Congress of Obstetricians and Gynecologists, which opposed employer interference in birth control in Hobby Lobby v. Sebelius, and those from progressive advocacy groups like Rock the Vote, over the course of two meetings. Given the nature of the rules, those meetings appear to have been pro forma, designed to create the appearance that the administration was taking the rulemaking process seriously in the name of reproductive health.
A month before the administration finalized the rules, anti-choice radical and Operation Rescue President Troy Newman, who in 2015 was detained by the Australian government because lawmakers believed he posed a threat to women seeking reproductive health care, attempted to fundraise off of what he called the “abortion drug mandate.”
“We’ve been pushing for this ‘abortion drug mandate’ to be repealed for ages,” he wrote in an appeal for donations.
Civil rights advocacy organizations have promised to sue the administration, likely arguing that the new rules are in clear violation of the Hobby Lobby decision, which says that women are guaranteed seamless access to contraception under Obamacare.
How those legal fights will shake out, however, is not entirely clear just yet.
When the U.S. Supreme Court issued its decision in Hobby Lobby v. Sebelius, the court presumed without deciding that the government had a compelling interest in providing that seamless access to contraception in insurance plans. The presumption is important for a couple of reasons, most importantly because it left the door open for conservatives to further attack the benefit entirely. The rules announced Friday could be how they try to do so.
To successfully defend against a RFRA claim like the one Hobby Lobby brought challenging the benefit, the government must show that its regulatory action is serving a “compelling interest” and that there are no “less restrictive means” of serving that interest. The birth control benefit includes an accommodation process for religiously affiliated nonprofits to assert a religious objection to the requirement so as to be exempted from complying with it. But the Supreme Court ruled in 2015 that the benefit failed the RFRA test as to certain for-profit companies because the government had another alternative, the accommodation process, already built into the law.
The part of the Hobby Lobby decision that employees are entitled to seamless contraception coverage as preventive care is something the new rules clearly disregard. Civil rights advocates can use that to challenge the legality of the new rules.
Since the decision, more than half of the benefit’s exemptions have gone to for-profit companies, according to a Center for American Progress Freedom of Information Act request. And that’s a lowball estimate, according to NWLC Senior Counsel for Health and Reproductive Rights Mara Gandal-Powers. “There truly are an unknown number of employers that want to be totally exempt from the birth control benefit,” she wrote in a blog post titled, “How I Spent My Summer Vacation: Worrying About the Future of Birth Control.”
In other words, the Hobby Lobby decision handed corporations another way to avoid having to pay taxes and provide equal benefits to their employees. And they’ve rushed to do so. Under the new rules, more corporations will presumably follow.
The presumption in Hobby Lobby did yet more damage: It left open the possibility that a future ruling could decide the legal issue of just what kind of legal interest the government has in providing contraceptive access. Based on the administration’s press release, the Trump administration tips its hand that it will argue against the government’s interest in providing seamless access to contraception as a compelling one. Instead, the administration will argue it is only a “reasonable” one, thus trying to ingrain an anti-contraception bias into the law as conservatives continue their relentless attacks on reproductive health-care access on all levels of government.
The rules allow employers to assert a new “moral” objection to complying with the benefit, a vague term the administration acknowledged in the leaked rule is outside the bounds of RFRA.
What is a moral objection to complying with the benefit, and how does it differ from a religious objection—the one many conservatives have claimed all along? Those questions will likely fill the dockets of federal courts across the country as courts wrestle with what a moral objection can be. Does a moral objection to government regulation in general, a sentiment expressed routinely by the right wing of the Republican Party, count as a sufficient moral objection? Can they that stretch into ignoring other regulations with which businesses may not agree?
That’s just a preview of the coming civil rights and religious imposition legal fights ahead.
Another question for the courts is whether the scope of the administration’s power includes undermining a critical facet of Obamacare through regulations without a formal repeal of the law by the U.S. Congress. This is a separation of powers question—just how far does the president’s power reach to essentially rewrite the law?
Then there is the question of the ongoing litigation around the Obama-era benefit and this very accommodation process, filed by a host of religiously affiliated nonprofits like the University of Notre Dame.
Those challenges have already been to the Supreme Court once in Zubik v. Burwell. But in that case, the Court refused to answer whether the accommodation process that allowed religiously affiliated nonprofits to opt out of the benefit itself violated RFRA. The Supreme Court instead directed the cases back to the appellate courts and told conservatives challenging the benefit and the Obama administration to work it out. That never happened. And as the U.S. Department of Justice (DOJ) changed hands under the Trump administration, the lawsuits have mostly sat in limbo in the federal courts, with the administration claiming it needed more and more time to analyze the issue before it could move forward in the litigation. Friday’s announced rules could be one avenue the Trump administration takes to kill off that ongoing litigation.
By early August, one federal court had run out of patience, ruling that Real Alternatives, a so-called crisis pregnancy center, or fake clinic, had to comply with the birth control benefit, handing challengers a legal setback and reviving the fight over the accommodation process in the courts.
And it is starting to heat up even more. On August 31, DOJ attorneys and attorneys representing the University of Notre Dame filed a status report with the Seventh Circuit Court of Appeals. That status report concerned ongoing litigation between the federal government and the university over whether the accommodation process violated RFRA. The federal government and the university had been on opposite sides of the case. Now, it appears that they have joined forces.
The Seventh Circuit Court of Appeals had instructed the parties as to what was to be included in that status report. “In the report, the court expects to see either a report of an agreement to resolve the case or detailed reports on the parties’ respective positions,” the court’s order states. “In particular, the appellees should detail what is the status of the Office of Management and Budget’s review of the draft interim final rule, and what additional steps, if any, remain to be taken.”
The joint submission by the University and DOJ answered none of those questions. Instead, it offered the court the following information: that the University and DOJ were engaging actively in negotiations to try and settle the lawsuit; that the Office of Management and Budget, the office charged with oversight of implementing the president’s executive branch vision, had extended, to an undetermined amount of time, its review of the leaked draft of the HHS interim final rule; and that it wanted more time to update the court on its progress.
Notre Dame and the Trump administration have a legal problem here beyond what’s been outlined. Students and employees of the university have joined the lawsuit as plaintiffs, and their attorneys demand the university comply with the benefit. They claim they were left out of those negotiations—an unusual and unprofessional action, if true.
According to those attorneys and their client, DOJ isn’t talking about a settlement with students or employees. They’ve been locked out of the negotiations, according to the status report filed by attorneys on their behalf. The plaintiffs have no idea what the administration and the university have discussed and whether those discussions have made their way into the rulemaking process.
The Notre Dame case could be the federal court’s next big push back against Trump administration overreach. It’s the only case challenging the accommodation process that includes affected people in the litigation. And it’s unlikely that the federal courts will tolerate the kind of continued kicking-the-can-down-the-road approach or attempted administrative workaround that Trump’s DOJ has taken in these cases since January.
Which could be why the administration recently nominated Amy Comey Barrett to the Seventh Circuit Court of Appeals. Barrett is a Notre Dame professor who has been aggressively anti-contraception in both her professional career as well as public appearances. She has never been a judge, but that didn’t stop Senate Judiciary Committee Republicans on Thursday from clearing her for a confirmation vote in the full Senate.
In fact, the administration has another status report due in Little Sisters of the Poor, a separate case in the Tenth Circuit Court of Appeals challenging the accommodation process, by September 12. The administration has delayed that case as well, claiming it needs more time to review the background and become familiar with the case. It is unclear what the administration plans to tell the Tenth Circuit now.
It may be that the Supreme Court is the ultimate arbiter of the fate of the ACA’s birth control benefit or whatever replacement the administration has in store. It’s likely that businesses that may be allegedly left out of these rules will sue to try and have the rules apply to them as well. Consider the expansive definition of church-plans that the Supreme Court, under the influence of ultra-conservative darling Neil Gorsuch, ushered in last year that can help give religiously affiliated Catholic hospitals that were not originally part of the Obama-era litigation a new avenue to challenge or avoid the requirement altogether. They employ 523,040 full-time employees. It’s difficult not to imagine those organizations suing to be included. That could leave potentially dueling legal paths over dueling administrative rules that the Gorsuch Court will need to resolve.
In other words, the fight for the birth control benefit is far from over.