Excepting Contraceptives: Un-mandating the Mandate

LAST WEEK IN REVIEW: Monday, Oct. 2nd – Friday, Oct. 6th

Last week began in tragedy, with Sunday’s horrendous mass shooting in Las Vegas which left 59 people dead and 546 injured. The aftermath of the violence again renewed calls for greater gun control and highlighted the public health implications of mass shootings.

Meanwhile, on Capitol Hill, the House of Representatives passed a bill that would ban abortions after 20 weeks. In the Senate, the Senate Health, Education, Labor and Pensions (HELP) Committee held hearings on the federal response to the opioid crisis. Additionally, the Senate’s Finance Committee advanced a bipartisan bill to renew funding for the Children’s Health Insurance Program (CHIP).

In the healthcare access space, in response to the Trump Administration’s reductions to the marketing budget for Open Enrollment for, a group of former Obama Administration officials launched Get America Covered, an effort to sign people up for ObamaCare. But the real action of the week was on Friday, when the Trump Administration announced it’s latest action on ObamaCare—taking on the controversial contraceptive mandate. More on that below, in this week’s Spotlight.

SPOTLIGHT: The Trump Administration’s New Exceptions to the ACA’s Contraception Mandate

From the moment the Trump Administration announced on Friday that it was fulfilling a campaign promise to further limit the Affordable Care Act’s (ACA) contraceptive mandate, the stage was set for the latest act in a political drama—with very personal implications—that has played out over the past seven years. From the Administration’s press release to the reactions from across the country, it is clear that we remain a nation no less polarized on this important women’s health issue than we were the moment the first iteration of the contraceptive mandate was implemented in August 2011.

For some, the mandate places undue burden on parties who regarded the use of these contraceptives as an affront to their moral or religious sensitivities. To others, those objections are more about employers imposing their religion on employees than about government imposing its secular values on employers. Somewhere between deeply-held beliefs, societal progress, and the “proper role of government,” this overview should help you unpack the history and potential future of the now-relaxed contraceptive mandate.

The backstory on the mandate is fairly straightforward. The ACA created a new section of the Public Health Service Act that required insurers to provide coverage without cost sharing for certain preventive services. After a landmark 2011 report by the Institutes of Medicine, the Obama Administration made the call that coverage of all Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures and patient education and counseling were just the kind of “preventive services” the law had in mind. Once issued in August 2011, this rule required employers to ensure that their insurance plans covered these services for all women in their employ with reproductive capacity.

The rule instantaneously created battle lines, with core religious institutions as well as religious nonprofits among the first to take issue. After the Obama Administration conceded by exempting these particular institutions, groups of for-profit employers began to refuse compliance with the mandate, most notably with legal challenges that made their way to the Supreme Court.

In 2014, the Supreme Court found in Burwell v. Hobby Lobby that family-owned corporations like Hobby Lobby could not be forced to cover contraception for employees over their religious objections. Moreover, the Court opined that the government must choose a less restrictive means to further their compelling governmental interest in contraceptive coverage for women. Two years later, in Zubik v. Burwellseven consolidated challenges to the contraceptive mandate—the Supreme Court offered no opinion on the merits of the cases, but vacated and remanded the matter back to the lower courts.

In its ruling in Zubik, the Court wanted the parties to find a solution that both accommodated the businesses’ religious exercise while ensuring that women covered by the businesses’ health plans receive full and equal health coverage—including contraceptive coverage. As both the Obama Administration and the challengers of the mandate viewed the Court’s decision in Zubik as a victory in their favor, the debate raged onward without resolution.

Consistently, there have been several key issues for the opponents of the ACA’s contraceptive mandate. Their concern over government intrusion on the free practice of religion is driven by their contention that some of the FDA-approved contraceptives—particularly Ella, Plan B, and intrauterine devices, could be considered abortifacients, capable of terminating pregnancies after an egg has been fertilized. They proclaim that they have no interest in denying the right of their female employees to use such contraceptives, but feel, instead, that the employees should purchase them privately or with government assistance rather than placing the burden of providing access to these products on employers with fundamental and deeply-held issues with their use.

Proponents of the ACA’s contraception mandate, on the other hand, contend that the mandate does not actually burden employer religion, at all. The mandate requires only that employers provide health insurance for employees, which includes—but is not limited to—covering contraceptives. The decisions on use of contraceptives appropriately are made by the employees, alone. The mandate does not ask employers to use contraceptives, nor does it restrict their ability to decry the use of these products among their employees. Proponents also point to studies suggesting that contraceptives are much less costly than maternal deliveries that often occur as a result of unintended pregnancies for both insurers and patients.

In the five years since the mandate first went into effect, studies have consistently detailed the substantial decreases in out-of-pocked costs for FDA-approved contraceptives for women with a range of insurers. One study found that the number of women paying for contraceptives dropped from nearly 21 percent to under 4 percent within two years of the contraceptive mandate. While HHS estimated back in 2015 that 55 million women were covered by policies that provide no-cost contraceptives, the Trump administration countered that over 25 million people are exempted from the preventive-care mandate, broadly, because they remain covered by grandfathered health insurance plans that existed prior to the mandate.

Both on the campaign trail and in President Trump’s May Executive Order, the Trump Administration has been unwavering in their commitment to amending the Affordable Care Act’s preventive-care mandate in order to address conscience-based objections above and beyond the exemptions made by the Obama Administration. Still, in the Trump administration’s press release on Friday—described as “rules protecting the conscience rights of all Americans”—they emphasized the limited scope and potential impact of the new Interim Final Rules. They described the new exemptions as applying to approximately 200 businesses or organizations—an estimate based on the number of entities that filed the roughly 50 legal challenges to the contraceptive mandate based on religious or moral objections. From those 200 entities, Health and Human Services (HHS) estimated that an approximately 120,000 women would be affected. As the agency described it, “these rules will not affect over 99.9% of the 165 million women in the United States.”

With the new rule comes a new wave of advocacy and activity. The Massachusetts Attorney General and the American Civil Liberties Union (ACLU) filed suit against the Trump Administration within hours of the rule, while the California Attorney General, National Women’s Law Center, Center for Reproductive Rights and Americans United for Separation of Church and State have also promised to file suit. Meanwhile, a leading medical professional association in women’s health, the American Congress of Obstetricians and Gynecologists, noted that weakening contraception coverage could impact maternal mortality, community health and the economic stability of women and families.

On the other hand, opponents of the contraceptive mandate have characterized the rule as only carving out a narrow exemption and otherwise keeping the mandate in place. While entities with pending or unresolved lawsuits regarding the contraceptive mandate were not guaranteed any legal relief by the rule, many did describe feeling encouraged in their prospects after the rule was published. Finally, with the increase of exemption requests from for-profit corporations that followed the 2014 Hobby Lobby suit, it would not be surprising to see a similar spike in new exemption requests in the coming months.

While the Trump administration certainly changed the landscape regarding religious and moral exemptions for the Affordable Care Act’s contraceptive mandate, the long-term impact of this new rule will remain to be seen. The number of women affected and the impact of the rule on their out-of-pocket costs for contraception will be determined by the number of exemptions granted and the ultimate disposition of pending lawsuits. But, one thing is for certain: while our government’s balancing of women’s contraceptive access and freedom of conscience for businesses may have shifted last week, the debate is far from over.