Trump’s administration has drafted a rule that would significantly relax the requirement that all employers provide a health care insurance plan that includes coverage for birth control. In August 2011 President Obama implemented a mandate that required insurers and employers to provide coverage for all contraceptive methods approved by the FDA, as part of the Affordable Care Act. The new rule would allow any for-profit, public companies and non-profit organizations, regardless of size or structure, to seek an exemption from the requirement on the grounds of religious or moral conviction. In loosening the requirement, the rule would also “create an exemption for health insurance companies that have religious or moral objections to covering birth control. It would change the current accommodation for certain religiously affiliated employers from mandatory to optional. And it would allow insurers and employers to provide a separate insurance policy excluding coverage of contraceptives to individuals who have religious or moral objections.”
The contraceptive coverage mandate was the subject of a significant amount of litigation. In 2014 the Burwell v Hobby Lobby case was decided, where a 5-4 majority ruled that the mandate violated the religious freedom of family-owned corporations. Small employers were already not required to provide health coverage whatsoever, and religious employers, religiously affiliated groups, and some older insurance plans could be provided an exemption from providing contraception coverage. But, the decision in Hobby Lobby signalled an extension of religious rights to “closely-held, for-profit corporations,” which was defended by the majority as a nominal exception to the mandate. However, the dissent strongly objected, stating the decision would jeopardize women’s health and reproductive rights and expressing concern over extending religious liberty protections to the for-profit, corporate world.
In response to the Hobby Lobby decision, the Obama administration “proposed an ‘accommodation’ for both religious for-profit and nonprofit entities. With the accommodation, insurance companies would now pay for contraceptive coverage under the auspices of the nonprofit’s plan.” But, this accommodation was subject to further litigation in 2016 in the case of Zubik v Burwell, often described by reference to one of the plaintiffs, the Little Sisters of the Poor, which argued that seeking an exemption and accommodated coverage still amounted to complicity in practices that violated their religious freedom. In the Little Sisters case, SCOTUS unanimously decided to vacate the lower decisions, remand the case to the Appeals Courts, and urge the parties to reach an agreement between themselves. While Obama’s administration considered various arrangements, none were implemented before he left office.
The White House Office of Management and Budget is said to now be reviewing Trump’s new rule. According to the “Executive Order Promoting Free Speech and Religious Liberty” released on May 4, 2017, the administration was looking to make “amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.” Nuns from the Little Sisters attended the signing of the EO, where President Trump stated that with the new rule “we are ending the attacks on your religious liberty.” The new rule would come in the midst of further potential changes to the American health care system, with the Bill for the American Health Care Act now moving to the Senate. If approved, the new rule would likely be the subject of further litigation by women’s rights advocates.
This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.