This is part two of Rewire’s series on the regulatory war on the Affordable Care Act. You can read the other pieces in the series that have been published so far here.
The regulatory war on the Affordable Care Act (ACA) is about to get a lot worse for vulnerable populations that depend on the law’s key health-care benefits.
The Trump administration is prepared to battle in the weeds against what congressional Republicans have grudgingly conceded remains the law of the land: Obamacare. Anti-choice cabinet members are presumably plotting to wield regulatory power to kill no-copay contraception in the federal agencies, an arena even less transparent than the U.S. Congress. Rewire can report that the war extends beyond the so-called women’s health benefits, singling out transgender people, pregnant people, and people with low incomes, categories that are not mutually exclusive.
“I say to folks, it’s not a matter of ‘if,’ it’s a matter of ‘when,’ Mara Gandal-Powers, senior counsel for health and reproductive rights at the National Women’s Law Center (NWLC), said in a phone interview.
Roe is gone. The chaos is just beginning.
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Rewire launched a series to determine the breadth of what the Trump administration can accomplish without a formal repeal of President Obama’s signature health-care reform law. In part one, we examined the difference between the statutory power of Congress and the regulatory power of federal agencies. Even though Republicans in the House of Representatives failed in their quest to repeal Obamacare, advocates expect the administration to undermine many components of it mainly through the U.S. Department of Health and Human Services (HHS), perhaps hastening the process via a long-rumored religious imposition executive order from the White House. Doing so would leave the law’s essential health benefits, including preventive services, in place, along with another part of the law requiring coverage of women’s preventive services.
But essential health benefits and women’s preventive services would exist in name only should HHS change the regulations defining what constitutes women’s preventive services. The popular birth control benefit is likely the first to go. Beyond writing the benefit out of the women’s preventive services regulations, the administration could pull “multiple levers” to get rid of it. A multi-pronged attack could see President Trump issuing the religious imposition order and in turn, strengthening ongoing litigation against the benefit.
Another possibility: redefining the 18 FDA-approved forms of contraceptives in a joint HHS, U.S. Department of Labor, and U.S. Department of the Treasury guidance document.
LGBTQ people, including transgender and gender nonconforming people, rely on the birth control benefit and other women’s preventive services established in the statute and defined regulations. Advocates see the administration deliberately targeting their ability to access health care. The same goes for people with low incomes, especially women of color, who rely on Medicaid.
Join Rewire for part two of our series enlisting advocates and lawmakers to demystify how the Trump administration can brandish unilateral power to jeopardize reproductive health.
Nothing in the ACA quite invokes ire in the Trump administration like Section 1557 of the law. Both the statutory text of Section 1557 and the set of regulations enforcing it are designed to protect women, transgender, and gender nonconforming people.
Let’s first explore the significance of Section 1557. There’s a lot to the federal nondiscrimination it puts into place.
Section 1557 prohibits all entities receiving federal funds from discrimination on the basis of race, skin color, national origin, sex, age, or disability. A person’s sex includes discrimination based on pregnancy, gender identity, and sex stereotyping in all such health-care programs and activities. That means even religious and religiously affiliated providers that accept money from the federal government can’t deny patients health care or health coverage. If they do, Section 1557 provides a legal vehicle for, say, people seeking sterilization, people seeking abortion care, or transgender patients seeking any health-care services to sue.
Congressional Democrats wrote Section 1557 into the health-care law they passed in 2010, but HHS didn’t finalize the rule enforcing Section 1557 until May 2016. HHS acted just outside the window for Republicans to repeal the last six months of Obama-era regulations in the first 60 days of a new Congress. Trump signed off on the GOP’s ax to Title X family planning protections and other regulations finalized toward the end of Obama’s presidency.
By August 2016, the fight moved to the courts. More than 20 states led by GOP governors, along with three religious affiliated health-care providers, sued in the same Texas-based conservative federal court that halted enforcement of Obama administration guidance protecting transgender students in school. (The Trump administration subsequently withdrew the guidance, though Title IX has always protected the rights of transgender students to use restrooms and facilities consistent with their gender identities.)
The same conservative federal judge, District Court Judge Reed O’Connor, struck again with a temporary injunction against the Section 1557 rule with less than 20 days left in Obama’s presidency. The result of the ruling is to block enforcement of Section 1557 broadly, though plaintiffs can still sue for discrimination under the provision.
Advocates’ biggest concern around Section 1557 “is that the Trump administration could choose to just not enforce it,” said Alexis Cole, policy manager for Unite for Reproductive and Gender Equity (URGE).
The administration “signaled” that new direction by appointing anti-LGBTQ activist Roger Severino to lead the HHS Office of Civil Rights charged with enforcing Section 1557 regulations. While working for the DeVos—yes, that DeVos—Center for Religion and Civil Society at the conservative Heritage Foundation, Severino was a vocal critic of nondiscrimination under Section 1557 of Obamacare and doesn’t believe it should apply to gender identity.
Severino’s job did not require Senate confirmation, allowing his extreme positions to go unchecked.
“He actually called the Office of Civil Rights’ efforts to enforce 1557 an abuse of power,” Cole said. “He seems to show a deeply flawed knowledge of what 1557 actually requires. He falsely claimed that it could force a doctor to perform [gender affirming surgery], because it grants special privileges for gender identity, which it does not do.”
The Trump administration removed enforcement language on Section 1557 from the HHS website, according to the NWLC. The advocacy organization, in turn, hit HHS with a Freedom of Information Act request to obtain information about Section 1557 enforcement—or lack thereof.
“If Trump administration officials think they can silently and inconspicuously change the scope of protections for women and LGBTQ individuals in health care, they are wrong,” NWLC President-elect Fatima Goss Graves said in a statement.
“We will fiercely safeguard the ACA and its crucial anti-discrimination provision that millions of women depend on. They deserve to know what’s at stake when it comes to their health and economic security.”
The Trump administration is already waging a stealth campaign targeting vulnerable LGBTQ populations, particularly for young, old, disabled, and homeless people, as Rewire reported in March. That same month, the administration nixed a proposal to include a question about sexual orientation and gender identity in the next U.S. Census, essentially erasing the lives of an estimated 10 million people in the United States.
Gutting Section 1557 protections would amount to the latest strike against sexual orientation and gender identity.
“Coupling that with appointing people to run our civil rights’ offices who don’t believe in enforcing non-discrimination laws … signals that this administration does not care about LGBTQ people,” Cole said. “We need to stand up and fight for them.”
Health Care for People with Low Incomes
Advocates fear the administration’s wrath against people with low incomes who depend on Medicaid, the joint federal-state health insurance program.
Some statistics about Medicaid help put the stakes into context: Medicaid and a companion program, the Children’s Health Insurance Program (CHIP), in 2015 covered one in five women of reproductive age—about 13 million of the 74 million beneficiaries, said Adam Sonfield, senior policy manager for the Guttmacher Institute, a pro-choice research organization.
“Medicaid is particularly important for many vulnerable groups, including poor women and women of color,” Sonfield wrote in a recent article examining why protecting Medicaid is necessary to reproductive and sexual health. The program in 2015 provided health insurance coverage for 48 percent of reproductive-age women whose incomes fall below the federal poverty line. Just 16 percent of white women had Medicaid coverage in 2015, while 31 percent of Black women and 27 percent of Latina women had that coverage in that year.
The U.S. Supreme Court in 2012 ruled that Obamacare would remain the law of the land—unless congressional Republicans succeeded in changing the law. But the justices conceded that states could opt out of the Medicaid expansion.
That’s what congressional Republicans and the Trump administration are enabling.
House Speaker Paul Ryan (R-WI) in March told the National Review that he’s been “dreaming” of slashing Medicaid “since you and I were drinking at a keg.” The House GOP’s failed Obamacare repeal bill initially ended Medicaid expansion in 2020. Ryan later moved up the expiration date to 2018 and piled on other sweeteners to appease members of the ultra-conservative House Freedom Caucus. The last-ditch effort failed to garner their support and further alienated rank-and-file Republicans, ultimately dooming the bill.
Thanks to the Trump administration, specifically HHS Secretary Tom Price and Centers for Medicare and Medicaid Services Administrator Seema Verma, efforts to curtail Medicaid coverage continue.
“The administration has already indicated its intention to fast-track new waivers for state Medicaid programs, including potentially allowing harmful changes like work requirements, premiums, and more cost sharing,” National Partnership for Women and Families (NPWF) Vice President Sarah Lipton-Lubet said in an email. “Millions of women rely on Medicaid for health coverage and access to care–from family planning to maternity care to nursing home care.”
House Republicans’ original Obamacare repeal bill undermined family planning services and “essential health benefits” for Medicaid recipients. Advocates charged that Republicans were daring the rest of Americans to turn their backs on millions of the most marginalized people. (Ryan later agreed to the Freedom Caucus’ demand to end the essential benefits writ large.)
Obamacare ensures Medicaid beneficiaries are entitled to the coverage of essential health benefits, including preventive services and women’s preventive services required by law and enacted through regulation.
“There’s no separate Medicaid protection for breastfeeding supports and supplies,” the NWLC’s Gandal-Powers said, referring to one of the no-copay benefits defined in the regulatory women’s preventive services guidelines.
“There are other statutory protections for family planning for Medicaid enrollees,” she continued. “But we know those are under attack, too.”
For example, Republicans in the House and Senate wielded an arcane procedural tool to shred family planning safeguards enacted under the Obama administration. The Obama-era rule had clarified existing law and sent a clear message that state officials can’t stop reproductive health-care providers, including Planned Parenthood affiliates, from receiving federal Title X funds if they offer abortion care.
Congressional Republicans will likely continue their crusade against Title X in the upcoming fiscal year 2018 appropriations process, as they have done in years past.
Another provision in the House GOP’s Obamacare repeal bill would have converted Medicaid to a block grant program, essentially capping how much the government allocates each year to states.
Doing so could help Republicans destroy the safety net of family planning providers. A block grant version of Medicaid could lead to eliminating the “freedom of choice” protection that allows most Medicaid enrollees to obtain family planning services at any provider, including those that are out of network. “States have been targeting that provision, particularly around Planned Parenthood and other [clinics that] provide abortion services without federal dollars,” the Guttmacher Institute’s Sonfield told Rewire.
The nonpartisan Center on Budget and Policy Priorities determined that “most of those losing Medicaid would likely end up uninsured.”
Gandal-Powers described the potential consequences of the block grant framework as pure “anathema” to Medicaid. “Family planning has always been a core service,” she said.
Such core services may find themselves in jeopardy under Verma’s Centers for Medicare and Medicaid Services, said Destiny Lopez, co-director of the reproductive justice organization All* Above All.
Verma testified at her Senate confirmation hearing that coverage of maternity care should be optional. Her views align with the GOP’s fundamental misconception of insurance—an issue that arose time and again throughout the 18 days that Republicans tried, and failed, to repeal Obamacare. House Republicans were eventually willing to sacrifice guaranteed coverage of maternity care and other essential health benefits to save their doomed repeal bill.
“There’s this argument, ‘Well, I’m a man, I shouldn’t have to pay [for women’s health benefits],’” Gandal-Powers said. “You think it’s like a cafeteria, and you can go pick up the eight things that you want and someone else can get the three things that she wants, and that’s just not how insurance works. Risk pooling is a real thing. Your premium doesn’t just pay for services that you get at the other end. It just doesn’t work that way.”
Lopez summarized the prognosis in a single sentence.
“What we know is that this administration has placed a target on women’s and reproductive health care,” she said.
The Very Marketplace
And then there’s Trump’s not-so-secret silver bullet: blow up the health insurance marketplaces, also known as the exchanges, to effectively finish off Obamacare.
“I’ve been saying for the last year and a half that the best thing we could do, politically speaking, is let Obamacare explode,” Trump told the White House press corps on March 24, the day the GOP repeal bill died. “It’s exploding right now.”
It’s not, NPR proved in an extensive fact check. GOP-fueled uncertainty over the future of Obamacare has worsened problems like fewer available coverage choices, according to NPR.
Competitiveness is indeed a “real issue,” Christy Gamble, director of health policy and legislative affairs for the Black Women’s Health Imperative, told Rewire in a phone interview.
“There needs to be a discussion about how to fix this, and not sabotage it, as one side of the aisle has done,” she said.
Republicans appear to favor the alternative despite tepid efforts to save face and stabilize the marketplaces. Perhaps they realized how dismantling the ACA’s marketplace coverage would reflect on them.
“Upending these marketplaces and their protections for enrollees’ coverage and provider access would have serious consequences, particularly for lower-income women of reproductive age,” Kinsey Hasstedt, senior policy manager for the Guttmacher Institute, wrote in a recent article.
Hasstedt made a rather prescient observation: “With the failure of the House leadership’s bill in March, Trump asserted that the ACA’s marketplaces would ‘explode’ on their own—a signal to many observers that his administration might actively sabotage the law from within.”
Trump on the first day of his presidency tried to detonate Obamacare’s individual mandate—the foundational requirement for people to purchase health insurance or face a penalty.
Trump signed an executive order to that effect within hours of being sworn in as the 45th president of the United States. The order empowered federal agencies to unwind the regulations that support the statutory requirement, and lo and behold, the Internal Revenue Service subsequently began to overlook noncompliance with the individual mandate.
HHS, pre-Price, yanked Obamacare ads just days before the end of the marketplaces’ open enrollment period. The last few days of open enrollment often bring a large influx of enrollees.
“Pulling support for advertising open enrollment keeps young, healthy people out of the market, which isn’t good for the market,” URGE’s Cole said. Republicans again demonstrate they are unwilling or unable to understand how insurance works when they drive away so-called “young invincibles” essential to stabilizing insurance markets.
And “young invincibles” need health insurance more than they might think. The administration’s obstruction “also isn’t good for young people who should be getting access to this insurance,” Cole said.
Hasstedt’s article concluded that sabotaging the markets benefits no one.
“Taken together, all of these actions make it clear that the Trump administration and Congress are poised to take affordable, comprehensive private health coverage—including coverage of much-needed sexual and reproductive health services—away from millions,” Hasstedt said. “If they succeed, it would be much to the detriment of the health and well-being of individuals, families, and the nation’s public health.”