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On February 2, 2023, the Biden administration published a proposed rule (88 Fed. Reg. 7236), with a 60-day comment period, that represents the latest chapter in a long-running war over the Affordable Care Act’s guarantee of free contraceptive coverage. At its heart is a plan to effectively build a new access pathway for members of health plans that exclude coverage on religious grounds. Its workability is unclear; indeed, the administration admits that, because of its complexity, the proposed approach “would not achieve the [ACA] goal of ensuring that women have seamless cost-free coverage of contraceptives” (88 Fed. Reg. 7254). But the administration should be commended its efforts on behalf of the affected population, estimated to include as many as 126,400 in 2018, a figure now seen as a lower bound given the anti-reproductive health backlash triggered by the US Supreme Court’s decision to end abortion rights in Dobbs v Jackson Women’s Health Organization.
The proposal could not come at a more crucial time, given the need to avert unplanned pregnancy in Dobbs’ wake, which has left an estimated 29% of all women of reproductive age living in states where abortion either is completely unavailable or subject to deep restrictions. Furthermore, the proposed rule coincides with a separate case, Braidwood Management v Becerra (N.D. Texas, 2022), which soon will make its way to the deeply conservative US Court of Appeals for the Fifth Circuit. Braidwood already has received considerable notoriety over the trial judge’s decision overturning as unconstitutional the US Preventive Services Task Force (USPSTF) preventive coverage standards, now a federal requirement for nearly all insurance plans. Additionally, on appeal, the Braidwood plaintiffs are expected to argue that the women’s preventive benefit standard is also unconstitutional — a claim tacitly invited in 2020 by Justice Clarence Thomas in Little Sisters of the Poor v Pennsylvania, in which the Court upheld the legality of the Trump administration’s religious exemption rule but only on lesser administrative law grounds.
How, in 21st century America, have we arrived at a point at which federal officials must try to jury-rig access to affordable birth control? The answer lies well beyond law, but law has turbocharged the entire effort to destroy any semblance of a rational reproductive health policy.
The story of contraceptive access begins with the ACA, which established preventive health benefits for women free of charge as a basic element of US health insurance. As it has done before when a coverage standard raises complex evidentiary considerations, Congress directed a federal agency – in this case, the Health Resources and Services Administration (HRSA) – to develop guidelines. Based on an authoritative report from the Institute of Medicine (now the National Academy of Medicine), HRSA issued coverage policies.
Since then — indeed, even when the women’s health amendment was being debated — the guidelines have been under intense fire. The Obama administration attempted to tamp down matters by creating a limited exemption for religious institutions, coupled with an accommodation for nonprofit entities with religious objections that technically carved contraceptives out of an objector’s group health plan while directing insurers, whether acting as insurers or plan administrators, to offer coverage directly.
Both the exemption and the accommodation were immediately met by a deluge of lawsuits1 attacking the complete exemption as too narrow, and the accommodation as an effort to use group plans as the means for providing coverage, thereby making group sponsors complicit in delivering federal birth control (including what some challengers considered abortifacients) to their plan members. In Burwell v Hobby Lobby Stores, Inc. (2014), the Supreme Court, which has elevated religious freedom claims to new heights, held that the 1993 federal Religious Freedom Restoration Act, enacted to protect individual religious practice against government interference, applies to corporations — far beyond the traditional church exemption. Following the death of Justice Antonin Scalia in 2016, a deadlocked Court sent the accommodation challenges back to the lower courts to work out a compromise that would address the complicit charge while preserving “seamless” access to covered benefits.2 That effort collapsed at the end of the Obama administration.
In 2018, HRSA, acting at the behest of the Trump administration, expanded the religious exemption to any private for-profit or nonprofit corporate objector, while also adding a moral exemption. The 2018 rules also allowed exempt organizations to adopt an accommodation for some or all contraceptives if they chose to do so. Pro-choice states and organizations sued; in 2020, the Court upheld their basic legality in Little Sisters, while remanding the case on a separate claim that the rules were arbitrary and capricious because they ignored the evidence of harm caused by such massive exemptions.
Against this backdrop, the Biden rule does several basic things. First, in an attempt to refute the Trump rule, as contemplated by opponents in Little Sisters, the rule documents why, especially in Dobbs’ aftermath, the imperative to protect access to contraception is a matter of such deep public health concern. On this basis, the administration proposes to keep the broad religious exemption while repealing the moral exemption as arbitrary and not required under the First Amendment.
Second, the proposal preserves the religious exemption without attempting to trim it, while continuing the 2018 rule of allowing exempt organizations to voluntarily carve out a complete or partial accommodation of FDA-approved contraceptives for plan members. Third, the proposal clarifies the scope of benefits protected by the contraceptive coverage guarantee to include certain important diagnostic and treatment services in connection with contraceptive prescribing.
The centerpiece, of course, is the administration’s proposal to avoid the “complicit” charge leveled at the accommodation process by creating an “individual contraceptive arrangement” for members of exempt health plans that refuse to adopt a voluntary accommodation. Under the proposal, people without group coverage would obtain free care from providers and pharmacies that have signed direct payment agreements with insurers participating in the Federally Facilitated Marketplaces that operate in more than three dozen states that have opted not to build their own marketplace platforms. The federal government would in turn repay insurers through a credit against their annual Marketplace participation fees.
Operationalizing this workaround presents a challenge. It requires both standing up new financial arrangements while also effectively building an entirely new nationwide clinic/pharmacy network to serve people scattered across the country. A separate challenge is how to continually educate plan members about their rights, ensuring they know about and can get the proof of eligibility they will need, and ensuring that they are able to obtain needed proof. Yet another is the likely attacks mounted by the opponents to come, who might try to argue that the government lacks the legal authority to use federal insurance regulation in this manner, although it is unclear who would have standing to bring such a claim.
But, given the vital importance of free, effective contraceptives and the fact that, unlike many other nations, the United States does not make affordable contraception universally available, this plan may be the best one can hope for.
 S. Rosenbaum and D. Frankford. Law and the American Health Care System. Foundation Press; 2022 Supplement.
 Zubik v Burwell (2020)
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.
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