Last week, the White House quietly announced a new rule had been drafted to rewrite the federal mandate requiring most employers to provide health insurance that covers birth control. But few people outside the administration have seen that rule — and that may not change before it goes into effect.
“We expect this rule to take birth control coverage away from women,” said Gretchen Borchelt, vice president of nonprofit advocacy group the National Women’s Law Center. She said that although the rule has already undergone several lawsuits and rounds of public debate, the “administration… is going to reopen this rulemaking and change it. That is not the way this process should work.”
In early May executive order “promoting free speech and religious liberty,” President Donald Trump directed the Treasury, Labor, and Health and Human Services departments to seek to “address conscience-based objections to the preventive-care mandate” of the Affordable Care Act. Hours later, Health Secretary Tom Price made it clear how exactly his department would carry out the president’s directive: by reexamining the “contraception mandate.”
The new rule’s exact details remain unknown, but it is currently listed on the Office of Management and Budget’s website as being an “interim final rule.” Those typically go into effect as soon as they’re published; the Obama administration altered the contraception coverage rules at least twice in that way, first in 2011 and again in 2015.
“The thing that makes this so troubling is that [the administration] is doing it without any opportunity for debate,” said Kaylie Hanson Long, national communications director at NARAL Pro-Choice America. “It’s not transparent whatsoever.”
Women across the country overwhelmingly support the current version of the rules dictating birth control coverage, which were outlined by Department of Health and Human Services guidance after the Affordable Care Act mandated that employers cover “preventive-care.” Researchers found that the policy helped women save about $1.4 billion in out-of-pocket costs for birth control in 2013. (The terms of the ACA also led women to choose longer-term — and more effective — methods of contraception like IUDs.)
“Access to affordable preventive services including contraception is a critical part of women’s health care. It should be treated as such.”
Employers currently must provide health insurance that covers at least one method of contraception. But not all employers have to pay for it; if they object on religious grounds, some can apply for an “accommodation” from the federal government that requires insurance companies to foot the bill.
But several employers have said that isn’t enough. Instead, they want to be “exempt” from giving employees coverage for some or all methods of birth control. (Houses of worship already enjoy this exemption.) The religious nonprofit Little Sisters of the Poor, who Trump welcomed at the Rose Garden signing ceremony for the executive order, brought the issue to the Supreme Court in 2016, arguing that the birth control mandate made the sisters “morally complicit in grave sin.” (The court vacated a lower court’s ruling and remanded the case back to the lower court.)
Trump said at the signing ceremony that the sisters “sort of just won a lawsuit,” signalling, Borchelt says, that he intends to give them — and many others — that exemption.
“The rule has been changed by regulation and guidance over time,” Laurie Sobel, associate director of women’s health policy for the Kaiser Family Foundation, a nonprofit that studies health care policy, said of the Obama administration’s changes to the rule. “Each one of those times it was either meant to clarify the scope of the coverage or how employers with religious objections could be accommodated — while women still got coverage.”
However, that balance, along with women’s access to coverage, may soon be upended. Because the rule change would alter only guidance on how to interpret the ACA — and not alter the ACA itself — Trump doesn’t need Congress to be involved. Nevertheless, last week Sen. Patty Murray and 13 other Democratic senators wrote a letter to the Office of Management and Budget urging Director Mick Mulvaney to “abandon any proposal that would erode access to affordable preventive care for women, including birth control.”
“Access to affordable preventive services including contraception is a critical part of women’s health care, as well as an economic priority for many women,” the senators wrote. “It should be treated as such.”
The Office of Management and Budget, which did not respond to a VICE News request for comment, now has fewer than 90 days to give the rule a final review and release it. After its implementation, the public will likely be allowed to comment, and the federal government could change in response it “if warranted,” according to the Office of the Federal Register. (It is also possible that officials could ask for an extension and delay the rule’s official release.)
If the administration changes the rule as many expect, there won’t be many options for proponents of the current ACA mandate, Borchelt says. A lawsuit could be possible, but it would likely take years to be decided. In the meantime, women whose employers object to providing birth control coverage may soon have to go without.
Additional reporting by Caroline Modarressy-Tehrani