Leaked regulation from HHS would roll back ACA’s contraceptive mandate

A draft rule from HHS would allow all employers to seek an exemption from the Affordable Care Act (ACA)’s mandate to cover contraceptives in their insurance plans, leading to many patients having to pay out-of-pocket for birth control, which is currently available at no cost.

The regulation, obtained by Vox, would greatly expand who could ask for an exemption to the contraceptive mandate. Under the ACA, it was initially limited to religious employers, such as churches, but a Supreme Court decision allowed “closely held” private businesses to seek exemptions, with the insurer stepping in to pay for the employees’ contraception—a solution which employers with objections to the coverage saw as insufficient and attempted to challenge in court.

The Trump administration rule wouldn’t limit the exemption to smaller, private businesses. Instead, larger, publicly-traded companies would be able to cite any moral or religious reason for not covering birth control, as could health insurers. Even individuals could object to participating in a plan which covers contraceptives.

“Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market,” the draft rule said.

According to a January 2017 analysis by the Kaiser Family Foundation, nearly 21 percent of women aged 15 to 44 paid some amount out-of-pocket for oral contraceptives prior to the mandate going into effect in 2012. By 2014, that number had shrunk to 3.5 percent.

The same report also found the mandate had broad public support, being favored by 71 percent of Americans (77 percent of women and 64 percent of men), while being opposed by 25 percent (20 percent of women and 31 percent of men).

In an unusual move by HHS, the draft rule would go into immediate effect, without allowing for a comment period.

“Delaying the availability of the expanded exemption would delay the ability of those organizations to avail themselves of the relief afford by these interim final rules and would further extend the uncertainty caused by years of litigation and regulatory changes,” the draft regulation said.

Such a justification isn’t good enough, according to University of Michigan law professor Nicholas Bagley.

“To my ears, that sounds like: ‘This is so important that we need to rush it out the door and not listen to people’s complaints,’” he tweeted.