Trump Guts Obamacare Birth Control Mandate in Another Blow to Reproductive Rights

Posted Oct. 18, 2017

MP3 Interview with Laurie Sobel, associate director of women's health policy at the Kaiser Family Foundation, conducted by Melinda Tuhus


In early October, the Trump administration announced a major rollback in coverage under the Affordable Care Act, which the Republican-dominated Congress has so far failed to repeal. Under the ACA, a suite of more than a dozen birth control options were required to be made available at no cost for women to choose the method best for them. That element of Obamacare was immediately challenged in court based on the argument that employers should not be forced to provide birth control if they objected based on their religious beliefs. A convoluted system was later devised to respond to those concerns, which allowed women to receive the birth control insurance coverage they needed.

According to the latest regulation issued by the Trump administration’s Department of Health and Human Services and the Department of Labor, the head of virtually any company can now decide that providing birth control coverage violates their religious beliefs or moral view, and deny female employees free birth control coverage. The regulation went into effect on Oct. 6.

Between The Lines' Melinda Tuhus spoke with Laurie Sobel, associate director of women's health policy at the Kaiser Family Foundation. She discusses how exemptions to the birth control mandate have grown over time, how the new rules change may affect women and how groups across the U.S. are fighting back.

LAURIE SOBEL: So, under the Obama administration, there were rules that were drafted to allow for religious employers to have an exemption, and that was limited to houses of worship, which had the effect of the women insured by those policies would not get contraceptive coverage.

Then there was a second category allowing for an accommodation, which allowed religiously affiliated non-profits, and then after the case of Hobby Lobby, closely held for-profits, to have an accommodation, which meant the employer had to notify someone – either their insurer or third party administrator or the government – that they had a religious objection to providing some or all contraceptive coverage and then the insurer was required to provide the coverage. So the effect on the people insured by those policies was that they still had full coverage for contraceptives with no cost sharing. It shifted who paid for the coverage.

BETWEEN THE LINES: But the Trump administration really blew a much bigger hole in the exemptions, right?

LAURIE SOBEL: Right. So now the exemption is expanded to everyone who previously had that accommodation, they can choose to stay with the accommodation or shift to an exemption, which has this impact that workers and their dependents would not have coverage anymore. So there was a group of non-profits in particular that had been litigating the accommodation, saying it didn’t go far enough to meet their needs in terms of their religious beliefs, that they felt they were complicit in providing that coverage if they had to notify someone who would then provide that coverage. So those non-profits that have litigated will likely opt for an exemption now, in addition the closely held for-profits can also opt for an exemption. That group of employers has not litigated the accommodation, but we don’t know to what extent they have been complying with the accommodation.

There’s a whole new group of employers that would now be eligible for the exemption, outside of those groups. So, in addition, any employer, regardless of whether they non-profit or for-profit, including publicly held companies, that have a religious objection to providing some or all contraceptive coverage, can be exempt. In addition, there’s a new category of employers that have a moral objection, and that’s open to any employer except publicly traded for-profits. So, all non-profits, and all for-profits that are not publicly traded can opt for an exemption based on a moral objection to some or all contraceptive coverage. There’s no definition of moral objection in the regulations.

BETWEEN THE LINES: So do the employers have to provide any kind of proof of their moral or religious opposition?

LAURIE SOBEL: There’s no proof that’s required.

BETWEEN THE LINES: Laurie Sobel, is there any way to figure out how many women could be impacted by these changes?

LAURIE SOBEL: No, we really don’t know. We certainly have no idea how many employers would take up a moral objection. There are numbers in the regulations that are really speculative; by regulations I mean the preamble before the regulations that the agencies wrote, that basically tried to figure out how many employers had litigated and based upon that how many would take the exemption as opposed to the accommodation and then trying to figure out how many employees each of those organization had. And the truth is, we really have no idea because this expands the categories so greatly that we don’t know which employers would take this up.

Certainly this is a big expansion of the exemption for this benefit, and it would be very hard to track how many women are affected because of the lack of notice that’s required to have this exemption, so there’d be no central place to know that employers notified their insurer or the government that they have a religious or moral objection. So it will become very difficult to track the number of women affected or the number of employers that have taken this on.

BETWEEN THE LINES: So these changes have already gone into effect, but what’s happening in the fight back?

LAURIE SOBEL: There’s active litigation going on already. The groups that I know about – I’m not entirely clear if they’ve all filed, but they’ve all announced they’re going to litigate – is the National Women’s Law Center, the ACLU, the Center for Reproductive Rights, the attorney general of California, and the attorney general of Massachusetts.

BETWEEN THE LINES: There’s a silver lining for women who live in states that guarantee more coverage than the federal government, right?

LAURIE SOBEL: There’s eight states that have their own laws that are at least as expansive as the ACA in terms of what’s required, so no cost sharing for coverage of contraceptive of all 18 methods; essentially it’s the ACA benefit required at the state level, and most of those states have a more narrowly defined exemption than is now in the federal law. So we know 61 percent of workers across the country that are covered; workers are insured by self-insured plans, and those aren’t regulated by the states. So that’s where the gap will be. So, if you’re an employer in California that has a moral objection and you have a self-insured plan, then you’re exempt from the federal law and you’re not covered by the state law.

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