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July 19, 2017
July 2017 | Sara Rosenbaum | Online Exclusive
From the moment they appeared, Affordable Care Act (ACA) regulations establishing birth control as a guaranteed insurance benefit have endured a legal onslaught. With the ACA “repeal and replace” in total collapse—at least for the moment—the Trump administration can be expected to continue on this course by attempting to do as much damage as possible to the family planning guarantee. We know this because on May 30, 2017, a draft rule aimed at curtailing the guarantee’s reach—scheduled to be published on an emergency basis—was leaked.
Whether the rule, if issued, triggers a widespread loss of coverage remains to be seen, since even before the ACA most employers covered at least some forms of contraception. But the leaked rule shows the lengths to which the administration will go to undermine public health standards. The logic underlying the draft emergency rule rests on the assertion that government has no compelling interest in assuring contraception coverage in employer plans. This assertion rests on a denial of science breathtaking in its scope.
The Trump administration’s effort to reduce the scope of the contraceptive guarantee is part of a broader enterprise to undermine access to birth control generally, whether publicly or privately financed. This enterprise includes efforts to bar federal Medicaid funding for Planned Parenthood, the largest source of safety-net preventive reproductive health services for low-income patients.1 It includes the total and abrupt defunding of teen pregnancy prevention programs, as well as efforts to defund Title X of the Public Health Service Act, the largest public health program focused on reproductive health. It has an international reach: The administration has now imposed a global gag rule on overseas health programs receiving US federal funding that include abortion counseling and referral as part of their services.2
Guaranteed coverage of birth control at no cost is one of the ACA’s seminal public health achievements. The reach of this guarantee is enormous: Over half of all American women obtain insurance through an employer-sponsored plan. Although millions more depend on public programs such as Medicaid, Title X, public health agencies, or community health centers for affordable birth control, in a nation whose health care system rests on pluralistic financing, ensuring that all forms of coverage align with sound public health principles is vital. Where contraceptive coverage is concerned, these public health principles would seem to be irrefutable; indeed, birth control has been identified as one of the most important public health achievements.
Birth control coverage is part of the ACA preventive benefit coverage guarantee, which applies to both health insurers operating in the individual and group market and private employers that self-insure. Specifically, the ACA requires that all health plans other than those classified as “grandfathered” (a relatively small number of health plans that were in effect on the date of enactment and that continue without significant change in coverage and cost sharing) cover certain preventive benefits free of charge. The law requires coverage of evidence-based preventive screening and treatment services receiving an A or B rating from the US Preventive Health Services Task Force, evidence-based services for children and adolescents, routine immunizations recommended by the Advisory Committee on Immunization Practice, and evidence-informed preventive screenings and services for women. Following a report issued by the National Academy of Medicine that extensively reviewed the evidence supporting the impact of contraception on reducing unintended pregnancy and promoting the health of women, children, and families, the Obama administration issued regulations interpreting the women’s health benefit to include all US Food and Drug Administration-approved contraceptive methods.
Immediately, the guarantee ran headlong into the Religious Freedom Restoration Act (RFRA), enacted by Congress in 1993 following a precedent-reversing US Supreme Court decision3 that held that public laws of general applicability trump individuals’ First Amendment freedom-of-religion rights. At issue was a state law denying unemployment benefits for people with positive drug tests, which was applied to people who used peyote in religious ceremonies. RFRA was designed to restore stricter First Amendment precedents. It requires that before enforcing a law alleged to violate “sincerely held” religious beliefs, the federal government show a compelling governmental interest in doing so, and furthermore, that it choose the least restrictive approach in the design of the law.
In response to RFRA concerns, the administration exempted church plans from the contraceptive rule. All other employers were covered, however, including nonprofit employers with religious affiliations, such as hospitals and universities. To accommodate their objections, the rule also allowed employers to exclude birth control from their health plans and required that the insurers that either insure or administer these plans separately make coverage available to plan participants and beneficiaries.
This wasn’t enough for the objecting employers, who argued that the accommodation made them “complicit” in helping women gain access to birth control. Accordingly, they sued, along with for-profit employers left out of both the exemption and the accommodation.
In the first case, Hobby Lobby v Burwell,4 a split Supreme Court concluded that RFRA covers corporations, not just individuals and that there is no basis for distinguishing between nonprofit and for-profit companies. While not disputing the government’s claim of compelling interest, the majority also concluded that it had not shown that there existed no less restrictive approach to the guarantee. Following Hobby Lobby, the administration extended the nonprofit accommodation to closely held (ie, not publicly traded) for-profit employers.
Meanwhile, dozens of nonprofit corporations sued over the accommodation, demanding a complete exemption and arguing in a remarkable feat of doublespeak that the government had less restrictive alternatives that could avoid employer plans entirely, such as selling individual contraceptive-only insurance policies (which don’t exist) or expanding public programs (opposed by many of the legal advocacy organizations supporting the challengers).
Ultimately the accommodation cases arrived at the Supreme Court,5 but Justice Scalia’s death effectively ended them. Following oral arguments, the Court in May 2016 remanded the cases to the lower courts with instructions to work out a solution that would satisfy the challenges while ensuring that women would have “seamless” access to the coverage guaranteed under law. Following a new round of public comments, the Obama administration concluded that there was no reasonable alternative to the accommodation as issued.
Enter the Trump administration. The May 30th leaked rule—crafted as an emergency regulation to take effect without public notice and comment—asserts that the evidence shows that contraceptives increase health risks, that no evidence links contraceptive access to reduced unintended pregnancies, and that employer plans do not reach the most at-risk populations. Based on this astounding analysis, the draft asserts that there is no compelling case for not extending a total exemption to any employer with a religious objection.
The draft rule remains under wraps but probably will emerge soon. Expect the litigation to continue.
Sara Rosenbaum is the Harold and Jane Hirsh Professor of Health Law and Policy and founding chair of the Department of Health Policy at the George Washington University School of Public Health and Health Services. She also holds professorships in the Schools of Law and Medicine and Health Sciences. A graduate of Wesleyan University and Boston University Law School, Rosenbaum has devoted her career to issues of health justice for populations who are medically underserved as a result of race, poverty, disability, or cultural exclusion. Between 1993 and 1994, Rosenbaum worked for President Clinton, where she directed the drafting of the Health Security Act and designed the Vaccines for Children program, which today provides near-universal immunization coverage to low-income and medically underserved children. Rosenbaum is the leading author of Law and the American Health Care System (Foundation Press, 2012) and has received many national awards for her work in public health policy. She is past chair of AcademyHealth and a member of the Institute of Medicine. Rosenbaum also has served on the CDC Director’s Advisory Committee and as a Commissioner on the Congressional Medicaid and CHIP Payment and Access Commission (MACPAC), which she chaired from January 2016 through the expiration of her term in April, 2017.
Notes on Contributors
Hardy Perennials and Hothouse Flowers: What Can We Learn from “Repeal and Replace”?