WASHINGTON — The Trump administration is expected to soon issue its final rule on exemptions to the Affordable Care Act’s contraceptive coverage requirement, and critics of the rule say that it will greatly increase the number of organizations that can avail themselves of the exemptions.
“What’s at stake with these rules is women’s equality in the sense of access to contraception,” Louise Melling, deputy legal director at the American Civil Liberties Union, which opposes the broad exemptions, said on a conference call with reporters Thursday. “Control over reproductive capacity is being recognized by the Supreme Court as being essential to our chances to succeed or be equal in society. What’s also at stake here is … a question about religious objections and whether religious objections can entitle you not to comply with anti-discrimination measures … Any final rule presents real questions about how the country is going to treat these kinds of exemptions.”
The Affordable Care Act, which was enacted in 2010, requires employers to provide health insurance coverage for contraceptives free of charge. After religious groups and others objected to that provision, the Obama administration worked out a compromise allowing closely held private companies and religiously affiliated organizations an exemption from the rule. However, those groups had to register their objections so that their health insurer could be made aware of the situation; in that case, the health insurer would provide the coverage at no charge to the employer or the employee.
In October 2017, the Trump administration issued an interim final rule that broadened the exemptions, allowing for both a religious exemption — for basically any organization that wanted one — and for an exemption based on moral beliefs. However, that rule has been enjoined by injunctions issued by courts in California and Pennsylvania.
The federal court in the lawsuit brought by the California attorney general, who was later joined by attorneys general from Delaware, Maryland, New York, and Virginia, granted a nationwide injunction on the ground that the states were likely to succeed in showing that the rule violated the Administrative Procedure Act because it was issued without any notice or comment period, Melling said. Oral arguments in the California case are taking place on Friday.
In the Pennsylvania case, the court also granted an injunction for the same reason, and also for a second reason: that the rule was inconsistent with the Affordable Care Act. The injunctions mean that the original, more narrow Obama administration exemptions remain in place for now, said Melling.
However, the administration did have a notice and comment period after the interim final rule was issued, in advance of the final rule. So once the final rule comes out, the administration is likely to argue that the injunctions based on the lack of a notice and comment period are now moot, although opponents may still try to make a case based on other grounds, she said. The Office of Management and Budget is now reviewing the final rule per the usual procedure; a spokesperson at the Department of Health and Human Services said the agency didn’t have a timeline for when the rule would be released.
What might the final rule look like? “I don’t have insights about what’s in it, but I can’t imagine it would narrow the scope of who could claim an exemption,” Melling said.
Some organizations are happy with the rule. “The American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) strongly supports the right of healthcare professionals to act in accordance with their conscience in adherence to the Hippocratic Oath,” Donna Harrison, MD, executive director of AAPLOG, said in an email. “Such rights of conscience are foundational to American society. The same conscience rights are guaranteed in the U.S. Constitution and rightly should be respected for all Americans, including employers.”
Melanie Israel, research associate at the Heritage Foundation, a right-leaning think tank here, said concerns about the impact of the final rule are likely overblown. “Many organizations are perfectly happy with the existing accommodation process that has been in place for years, so the assumption they’re going to use [a new] religious or moral exemption is, I think, a stretch,” she said in a phone interview. The new final rule “is for the groups who weren’t comfortable with that accommodation process … It kind of added that extra layer between the action.”
The government already agreed the rule was too broad in scope when it added the original accommodation, Israel added. “This really should be putting this 7-year-long battle to a final close.” It was important to add exemptions for those with moral objections, not just religious ones, she said, “because this is how conscience laws have been working for a decade … A doctor‘s objection to performing an abortion could be rooted in a religious reason, but maybe it’s not; maybe it’s a moral reason. So extending that principle to this reason is simply being consistent.”