The Trump administration has issued new rules allowing more employers to opt out of the Affordable Care Act’s contraceptive mandate, a move that physician leaders say could sharply restrict women’s ability to access birth control and lead to more unplanned pregnancies.
Under two regulations, issued Oct. 6 in the Federal Register, an expanded group of employers and insurers can get out of covering contraception methods by objecting on either religious or moral grounds. The new policy will “better balance the government’s interest in promoting coverage for contraceptive and sterilization services with the government’s interests in providing conscience protections for entities with sincerely held moral convictions,” according to the rule on moral exemptions issued by the departments of Health & Human Services, Labor, and Treasury.
The American Congress of Obstetricians and Gynecologists denounced the new rules as a move that will negatively impact the health of women and families by limiting access to essential preventive care.
“Reducing access to contraceptive coverage threatens to reverse the tremendous progress our nation has made in recent years in lowering the unintended pregnancy rate,” ACOG President Haywood L. Brown said in a statement . “Instead of fulfilling its mission ‘to enhance and protect the health and well-being of all Americans,’ HHS leaders under the current administration are focused on turning back the clock on women’s health.”
The ACA initially required all employers to cover birth control for employees with no copayments, except for group health plans of “religious employers,” which were deemed exempt. Those religious employers were, for the most part, churches and other houses of worship. After multiple complaints and legal challenges, the Obama administration later created a workaround for another group – nonprofit religious employers – to opt out of the mandate. However, critics argued the process itself was a violation of their religious freedom. The issue led to the case of Zubik v. Burwell , a legal challenge over the mandate exemption that went before the U.S. Supreme Court in March 2016.
But the issue remained unresolved. In May 2016, the Supreme Court vacated the lower court rulings related to Zubik v. Burwell and remanded the case back to the four appeals courts that had originally ruled on the issue.
Under the new Oct. 6 regulations, any employer or insurer can halt their coverage of contraceptive services if they have religious beliefs or moral convictions against covering birth control. They need not have a specific religious affiliation to do so. States would determine how companies can make these decisions.
It’s unclear how many women and employers will be impacted. In its rule on religious exemptions, HHS estimated that 109 entities will use this voluntary accommodation moving forward. The department also estimated that the expanded religious exemptions will impact the contraceptive costs of about 31,700 women of childbearing age that use the contraception coverage.
According to research by the Kaiser Family Foundation, 1 in 10 nonprofit organizations with at least 1,000 workers sought an accommodation to not provide Affordable Care Act–required contraceptive coverage to their employees in 2015, but instead allow workers to access the copay-free coverage separately. Three percent of all nonprofits with at least 10 workers sought some kind of accommodation, according to the research. For the smallest of organizations (10-199 workers), the accommodation request rate was 2%, while 5% of organizations with 200-999 workers requested an accommodation.
The American College of Physicians expressed their disappointment with the new regulation, saying that it could lead to more out-of-pocket costs for women who currently receive free contraception.
“Our concern is grounded on our long-standing policy that all Americans should have coverage for evidence-based medical services, including preventive services like contraception,” Jack Ende, MD, ACP president said in a statement. “We are concerned that allowing employers to carve out exemptions to the ACA’s requirements that health insurance plans cover evidence-based preventive services without cost sharing, including but not necessarily limited to contraception, will create substantial barriers to patients receiving appropriate medical care as recommended by their physicians.”
In a statement , national pro-life group Susan B. Anthony List declared the new rules to be a “huge victory for conscience rights and religious liberty in America,” noting that it would exempt their group as a moral objector to contraception.
On Twitter @legal_med