Cnn
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Biden administration wants to make it easier for women to access free birth control under the Affordable Care Act, overturning Trump-era rules that weakened the law’s contraceptive mandate for employer-provided health insurance plans .
The proposed rule, unveiled Monday by the departments of health and human services, labor and the treasury, would remove a mandate exemption that allows employers to renounce moral convictions. It would also create an independent pathway for people enrolled in plans offered by religiously waived employers to access free contraceptive services through an available provider.
The proposed rule would leave the existing religious exemption in place for employers with objections, as well as optional accommodation for contraceptive coverage.
The administration crafted the proposed rule with the concerns of employers with religious objections in mind and the contraceptive needs of their workers, a senior HHS official told CNN.
“We really had to think about how to do it right to satisfy both parties, but we think we’ve found it,” the official said, noting that there should be no effect on religiously affiliated employers.
Students in religiously affiliated colleges would have access to expanded housing, just like workers in group health plans where the employer has requested an exemption.
Now that the proposed rule has been announced, the public will have the opportunity to comment in the coming months. Officials expect there will be many thousands of public comments and it will take “many months” before the rule can be finalized.
HHS expects the proposal will affect more than 100 employers and 125,000 workers, primarily by providing the proposed independent pathway for employees to receive free contraception.
Women using this route would get birth control from a participating provider, which would be reimbursed by an insurer on the Affordable Care Act exchanges. The insurer, in turn, would receive a credit on the utility fees it pays to the government .
“If this rule is finalized, individuals who have health plans that would otherwise be subject to ACA Preventive Services requirements but have not covered contraceptive services because of a moral or religious objection and for whom the employer sponsor or the college or university did not elect optional housing, now they would have access,” Chiquita Brooks-LaSure, administrator of Centers Services for Medicare and Medicaid said in a news release.
How many people will benefit, however, will depend on whether women and their caregivers know the independent route exists and whether providers and insurers are willing to set it up.
“We’ll just have to see how widely that information is disseminated and how to providers and individuals,” said Laurie Sobel, associate director for women’s health policy at the Kaiser Family Foundation, noting that the proposed rule would not require the collection of data to show the assumption of the route.
But the Planned Parenthood Federation of America has hailed the initiative.
“Employers and universities should not be able to dictate personal health care decisions and impose their opinions on their employees or students,” said Alexis McGill Johnson, group CEO. “The ACA mandates that health insurance plans cover all forms of birth control with no out-of-pocket costs. Now more than ever we must protect this fundamental freedom.”
The obligation to provide free contraception is not included in the Affordable Care Act itself. Instead, HHS under former President Barack Obama included it as one of the women’s preventive services that all private insurance plans must offer free.
The mandate was controversial from the start, sparking lawsuits from religiously affiliated employers and closely held companies who said it violated their beliefs. Waivers and accommodations have been available to such employers.
The Trump administration, however, has weakened the mandate. Under rules enacted in 2018, entities that “genuinely have religious beliefs” against providing contraceptives are not required to do so. That provision also extends to organizations and small businesses that object “on the basis of moral beliefs that are not based on any particular religious belief.”
The rules also include an optional arrangement that allows opposing employers and private universities to withdraw from providing birth control coverage while still allowing their workers and employees access to contraception. But the employer or university must choose housing voluntarily, which risks leaving many without access.
The Trump administration’s changes were temporarily stalled after a Pennsylvania District Court judge issued a nationwide injunction in 2019. But the following year, the Supreme Court ruled that the administration could extend the exemptions for employers who have religious or moral objections to contraceptive coverage.
At the time, the National Women’s Law Center estimated the ruling would impact an estimated 64.3 million women in the United States with insurance coverage that included birth control and other preventative services without out-of-pocket costs.
Employers are not required to notify HHS if they have a moral objection. The agency estimates that about 18 employers have said the exemption and about 15 employees are affected by it.
However, if the rule is finalized, senior HHS officials say it is “plausible” there could be potential lawsuits brought by religiously affiliated employers, similar to what has been seen in the past.
“There is no new requirement for them to participate in any kind of trial. This is simply an additional channel for employees of those employer health plans to receive access to contraceptive services,” another senior HHS official said.
The contraceptive mandate has taken on greater importance now that the Supreme Court has struck down Roe v. Wade, allowing many states to impose severe restrictions on abortion access.
The Biden administration, in turn, has focused on continuing access to birth control at no cost. Secretaries of the departments of health, labor and the treasury met with health insurers last year and issued guidance outlining Obamacare’s contraceptive coverage requirements for private insurance under the Affordable Care Act.
“Now more than ever, access to and coverage of birth control is critical as the Biden-Harris administration works to ensure women around the world can get the contraception they need, when they need it, and, thanks to the ACA, no way out. out of pocket,” HHS Secretary Xavier Becerra said in a news release.
This story has been updated with more information.