Trump Administration Moves to Finalize Rules Upending Birth Control Benefit (Updated)

The new rules threaten contraceptive care for the millions of people who depend on the birth control benefit.

[Photo: Activists at the Supreme Court holding signs about birth control.]
The new rules threaten the contraceptive care of more than 55 million cisgender women and an uncertain number of trans and non-binary people who depend on birth control with no co-pay through the ACA. BRENDAN SMIALOWSKI/Getty Images

UPDATE, November 7, 4:50 p.m.: The U.S. Departments of Health and Human Services (HHS), Treasury, and Labor announced Wednesday “two final rules to provide conscience protections for Americans who have a religious or moral objection to health insurance” that covers contraception, according to a press release from HHS. “The religious and moral exemptions provided by these rules also apply to institutions of education, issuers, and individuals,” the release said.

The Trump administration is moving forward with two rules that would allow nearly any employer to claim a religious or moral exemption to the birth control benefit mandated by the Affordable Care Act (ACA), leaving advocates and legal experts in a state of uncertainty.

The U.S. Department of Health and Human Services (HHS) sent the final rules to the Office for Management and Budget late last week.

The new rules threaten the contraceptive care of more than 55 million cisgender women and an uncertain number of trans and non-binary people who depend on birth control with no co-pay through the ACA. While the birth control benefit already allowed for religious exemptions, the Trump administration has sought to further meet the demands of the religious right, which believes the exemption isn’t broad enough.

While the final rules haven’t been made public yet, experts are expecting little change from the interim final rules issued last October. Those allowed any company or nonprofit organization to claim a religious exemption and any closely-held corporation to claim a moral exemption to the birth control benefit requirements.

According to the Administrative Procedures Act (APA), an administration must solicit public comment for any administration or agency rule before the new language becomes enforceable. The Trump administration instead filed the interim final rule before the end of the public comment period, in what some legal experts say was an attempt to speed up the rulemaking process. After several states filed lawsuits claiming the administration failed to follow correct procedure, two federal judges issued nationwide preliminary injunctions blocking the interim rules from being enforced.” But the administration has settled with scores of nonprofit organizations that sued for exemptions.

“The interim final [rules were] nothing short of radical,” said ACLU Deputy Legal Director Louise Melling in a press call Thursday. “What’s at stake here with these rules really is women’s equality, in the sense of access to contraception [and] control of our reproductive capacity as has been recognized by the Supreme Court as essential to our chances to succeed or be equal in society.”

As the Trump administration prepares to release the finalized rules, some legal experts continue to question the basis for the interim final rule’s moral exemption. “The Administration tried to justify the interim final rules by pointing to existing exemptions in federal law—chiefly exemptions to providing abortion care. But those were not applicable in this situation and don’t provide a legal basis for issuing the rules,” Mara Gandal-Powers, director of birth control access and senior counsel at the National Women’s Law Center, said in an email.

Gandal-Powers cited a lawsuit against the birth control benefit by the anti-choice group March for Life, which is not classified as a religiously affiliated nonprofit, as something that paved the way for the Trump administration’s moral exemptions rule. A D.C. circuit court ruled in favor of March For Life in 2015, finding that the organization had a moral objection to providing its employees with birth control.

What happens next depends largely on what the final rules actually say, but it’s possible the new rules are being released just to counter the legal arguments behind the injunctions. “What a final rule might do is give the administration a vehicle for arguing that any injunction that rests on the absence of notice and comment shouldn’t stand,” said Melling. But even if the injunctions are lifted, there is likely a long and uncertain legal road ahead for the rules.

“None of the substantive issues around the [regulations] have been briefed or argued [in court], and so even if they say the APA claims are now moot, it’s not clear what would happen if they go back and argue about the other claims on the interim or if they have to file a new lawsuit on the final,” said Laurie Sobel, associate director of women’s health policy at the Kaiser Family Foundation, in an interview with Rewire.News.

Sobel said the stay issued in by a federal judge in Pennsylvania was based on more than just the Trump administration flouting APA law by forgoing a public comment period before issuing interim final rules, so it might stay in effect even with slightly different finalized versions of the rules. “It’s not clear exactly what would happen at that point, but because the stay is still being waged in Pennsylvania, I don’t know if that stay would transfer to the final rules.”

If at least one of the nationwide injunctions stays in effect, or if injunctions are issued in new lawsuits, most people will not be losing their birth control coverage. “From our perspective, I think the good news is that the preliminary injunctions are still in place. Most people should still be getting their birth control coverage,” said Gandal-Powers. “I think that’s sort of the big picture thing to keep in mind, that people should not be losing their coverage.”