Despite Leaving Key Questions Unanswered, New Contraceptive Coverage Exemptions Will Do Clear Harm

Adam Sonfield, Guttmacher Institute
Reproductive rights are under attack. Will you help us fight back with facts?

First published on Health Affairs Blog:

On October 6, the Trump administration released an overhaul of federal regulations governing religious objections to the Affordable Care Act’s (ACA) contraceptive coverage guarantee. The move had been long expected. In early May, President Trump issued an executive order on "religious liberty" that signaled his intent to undermine the guarantee; a few weeks later, media outlets published a leaked draft of the new regulations. The two regulations issued on Friday—which took effect immediately—closely match the draft from May by creating sweeping new exemptions from the contraceptive coverage guarantee for employers, schools, individuals and insurers with religious or moral objections to some or all contraceptive methods and services.


Contraceptive Coverage Is Still the Law of the Land

Despite what some of the initial headlines may have implied, the new regulations do not eliminate the ACA’s contraceptive coverage guarantee. Under the ACA, most private health plans in the United States—whether sold to employers, schools or individuals, or whether offered by employers that self-insure—must cover dozens of preventive care services without any patient out-of-pocket costs. That list of services includes a set of recommended preventive services for women, and those recommendations, first established in 2011 by an Institute of Medicine committee and reaffirmed in 2016 by an expert panel led by the American College of Obstetricians and Gynecologists, include contraceptive methods and services.

More specifically, plans must cover all 18 distinct contraceptive methods used by women, and any new methods identified by the U.S. Food and Drug Administration. They must also cover all related services, including contraceptive counseling, services needed to initiate and discontinue a method, and follow-up care. Moreover, plans may not apply copayments, deductibles or any other out-of-pocket costs to any of these methods or services. Similarly, plans are sharply limited in their ability to impose formularies, prior authorization requirements and other administrative barriers to contraception. Federal guidance makes it clear that plans may only try to influence a patient’s choice within a specific contraceptive method (e.g., to favor one hormonal IUD over another) and not across methods (e.g., to favor oral contraceptives over the contraceptive ring).


Exemptions to the Contraceptive Coverage Guarantee Have Expanded

The contraceptive coverage requirement still applies to most private health plans in the country, but the Trump administration has created major new exceptions. Even before the new regulations, the contraceptive coverage requirement (like the rest of the preventive services requirement) did not apply to so-called grandfathered plans—plans that predated the ACA and have not changed substantively. This was meant to be a temporary exception, and indeed, the proportion of covered workers enrolled in a grandfathered plan has fallen to just 17% in 2017.

In addition, before the new regulations, a limited set of religious employers (primarily houses of worship) were exempt from the contraceptive coverage requirement. Beyond that, nonprofit employers and closely held for-profit employers with religious objections were offered an "accommodation" that the Obama administration set up as a compromise. That accommodation allows an employer with religious objections to "step away" from contraceptive coverage—refusing to pay for it, arrange for it or even talk about it—while still ensuring that employees and their dependents receive that coverage directly from the insurance company.

The new regulations issued by the Trump administration vastly expand the universe of potential exemptions. One regulation allows any employer—nonprofit or for-profit—to exclude some or all contraceptive methods and services from the health plans it sponsors if the employer has religious objections. The second regulation allows employers with moral objections to do the same, although it applies to a slightly narrower set of employers (any employer that isn’t publicly traded).

The pair of regulations gives these same options to colleges and universities in regard to health plans they sponsor for their students. The regulations set no standards for how an organization might establish that it has a religious or moral objection, and provide no mechanism for employees or students to challenge that claim. Objecting employers and schools may still make use of the accommodation, but that is entirely optional. The regulations also provide limited religious and moral exemptions for individuals and insurance companies.


The Biggest Unknown Is How Many People Will Lose Coverage

The full impact of these regulations depends on how many employers and schools will claim a religious or moral exemption; whether they will object to some or all methods and services; whether they will use the now-optional accommodation; and how many employees, students and dependents will be affected. Answers for all of those questions do not yet exist.

The clearest area of concern should be employers and schools that are currently making use of the accommodation under the old regulations. A 2015 study from the Kaiser Family Foundation estimated that 3% of all nonprofits and 10% of the largest nonprofits have been using the accommodation. The authors were unable to estimate how many nonprofits or enrollees that included. But they did note that there are more than 1.4 million nonprofits in the United States, and that thousands of nonprofits—including hospitals, long-term care facilities, schools and charities—are affiliated with the Catholic church, the hierarchy of which objects to contraception. The new regulations now make the accommodation optional, and one of the big questions is whether these nonprofits will continue to use the accommodation or whether they will instead actively deny contraceptive coverage to all of those employees, dependents and students.

In addition, the regulations now allow for religious objections by publicly traded for-profit employers and for moral objections by nonprofit and many for-profit employers and schools. Previously, publicly traded companies and moral objections had not been included even under the accommodation. Only a handful of lawsuits have involved these types of plaintiffs and objections, but that does not necessarily mean that few companies will make use of these new exemptions. Without clear standards or procedures for claiming a religious or moral objection and without any oversight mechanisms or ways for affected employees and students to appeal such a claim, the new regulations open a door for potential abuse.


There Are Many Forces That May Counter the New Exemptions

State policies can potentially limit the anticipated harm of the Trump administration’s new regulations. More than half the states have laws on the books, many dating back to the late 1990s, requiring insurance plans to cover prescription contraceptive methods if they cover other prescription drugs. Over the past few years, a number of states have gone beyond that by enacting policies that echo the federal requirement, in that they cover the full range of contraceptives used by women, eliminate out-of-pocket costs, and limit insurers’ ability to impose administrative barriers like prior authorization. Few of those state laws have religious or moral exemptions that are nearly as expansive as the new federal exemptions, and there is nothing in the new federal regulations that appears to override state law or apply the federal exemptions to those state laws. State laws cannot directly affect plans written in other states or plans offered by employers that self-insure, but if enough states were to impose requirements, it could have ripple effects across the entire insurance industry.  

The new federal regulations will also be facing challenges in court. Already, as of October 17, California, Massachusetts, Pennsylvania and Washington had announced lawsuits, as had the American Civil Liberties Union (on behalf of a major hospital workers’ union) and the Center for Reproductive Rights (on behalf of Medical Students for Choice). More lawsuits appear imminent.

Employers and schools will also face internal and external pressures to maintain coverage for contraception. Employee unions, student groups and individual employees can be expected to stand up for what has become a well-known and popular feature of the ACA. We may also see public campaigns to shame or boycott for-profit corporations and others that decide to jettison contraceptive coverage by suddenly asserting they have a religious or moral objection.

Moreover, employers will likely be influenced by bottom-line considerations in deciding that helping employees avoid unplanned pregnancies—and the related costs and disruptions to their workforce—outweighs any short-term savings from not covering contraception. For example, the National Business Group on Health (a membership group for large employers) recommended coverage of the full range of contraceptives, free of out-of-pocket costs, in a 2007 report, and concluded (relying on actuarial analysis from PricewaterhouseCoopers) that savings from this coverage would exceed the costs.


People Affected by the New Exemptions Will Be Harmed

However many employers and schools end up making use of the new religious and moral exemptions, their employees, students and dependents will face challenges affording the contraceptive methods and services they need. That is because the federal requirement has helped to reduce cost barriers to contraceptive use, by ensuring that almost every method is covered by insurance and by eliminating out-of-pocket costs that might otherwise skew people’s contraceptive choices. These cost barriers can be considerable: For instance, without contraceptive coverage, many women would need to pay more than $1,000 out of pocket to start using a highly effective method such as an IUD, contraceptive implant or sterilization; that would amount to nearly one month’s salary for a woman working full-time at the federal minimum wage of $7.25 an hour.

This matters because despite the claims of the Trump administration and other anti-contraception activists, contraceptive use does benefit women and families. Having an informed choice of a full range of contraceptive methods helps people to identify the methods that work best for them at a given point in their life—factoring in ease of use, side effects, contraindications, risk of sexually transmitted infections, desire for confidentiality and control, and many other considerations. Identifying the "right" methods helps people to use them consistently and correctly, greatly improving their chances of avoiding unwanted pregnancies and to plan and space the pregnancies they do want.

That in turn, has additional health benefits: For example, avoiding closely spaced pregnancies reduces the risk of premature birth or low birth weight. Preventing unintended pregnancy can help women manage certain health conditions, such as diabetes, hypertension and heart disease. Moreover, contraceptive use helps women to meet their educational and employment goals and to support their families. In short, contraceptive coverage matters, and taking away this coverage would be short-sighted and harmful.

This analysis was originally published on Health Affairs Blog.