The Trump administration is relaxing an Obama-era requirement that nearly all employers offer health insurance that covers a wide array of contraceptive methods.
New regulations released Friday significantly broaden the types of companies and organizations that can request an exemption from that rule. This could lead to many American women who currently receive no-cost contraception having to pay out of pocket for their medication.
The new rules take effect immediately. And they allow large, publicly traded companies to seek an exemption from the birth control requirement if they have a religious or moral objection to providing such coverage. The Obama administration barred these large businesses from such exemptions.
“This provides an exemption, a limited one, for those with religious or moral convictions implicated by the contraceptive mandate,” an HHS official said in a Friday morning briefing with reporters previewing the rule.
HHS projects that “99.9 percent of women” will be unaffected by these changes but gave little explanation of how it came to that data point. Officials did note that only a few hundred small businesses have so far raised religious or moral objections against the requirement by filing lawsuits.
But it is possible that larger publicly traded companies could join their ranks as the exemption gets widened. And the rule itself is blunt about the possible effect, noting that “These final rules will result in some enrollees in plans of exempt entities not receiving coverage or payments for contraceptive services.”
Which is the point. Your boss now gets to control whether or not the company's health coverage will cover contraception. I would imagine a number of small businesses would jump at the chance, and don't be surprised if Fortune 1000 companies follow suit.
The worst news is that the legal battle that is coming may already have been lost.
Women’s health groups, including the National Women’s Law Center and the Center for Reproductive Rights, have been preparing to file lawsuits against the regulation, based on an earlier draft that Vox obtained in late May.
The new rules have been designed specifically to guard against those expected challenges, a source familiar with their drafting told Vox. The Trump administration technically released two separate rules: one broadening the religious exemption and one creating a new moral exemption from the mandate. The reason is that if a court were to strike down one rule in a lawsuit, the other would likely still stand.
“Bifurcating the rule into two separate parts is like a severability clause on steroids,” Nicholas Bagley, a health law professor at the University of Michigan, said. “It's signaling in the strongest possible terms that the agency independently wants both parts of the rule to remain in place, even if one, or part of one, is invalidated.”
That strategy should be effective, forcing opponents to chase two targets. “The courts,” Bagley said, “will almost certainly respect that policy choice.”
It's not looking good at this point, especially as House Republicans passed a federal 20-week abortion ban.
It might be time to break out the red dresses and white habits sooner rather than later.