The Department of Health and Human Services announced new rules governing enforcement of the Affordable Care Act’s contraceptive mandate on Friday, expanding exemptions for insurance providers with religious or moral objections to contraception.
One new rule, which will take effect immediately, exempts a broad list of entities with religious objections to contraception from the law’s mandate. These include: nonprofits, employers, plan sponsors, and institutions of higher education. They also include exemptions for objecting individuals who do not wish to be covered by plans which provide contraception, even if their employer willfully provides it. Also exempt are certain insurance companies that provide insurance to these newly exempt groups.
A separate rule permits certain exemptions for "moral convictions" that are not religious in character, a practice HHS said comports with "Congress’s long history of providing or supporting conscience protections in the regulation of sensitive health-care issues."
The new rules substantially expand the kinds of entities that are exempt from the contraceptive mandate.
Obamacare’s rules initially required all employers to cover women’s contraception in the insurance they provided to employees, only carving out exemptions for churches and houses of worship. In response to objection from religious businesses, nonprofits, hospitals, colleges, and individuals, the administration created an "accommodation" through which religious entities could notify the insurance company with which they contract that they have religious objections; the insurance company would then be required to cover contraception for female employees directly.
This accommodation was deemed insufficient by many religious organizations, which argued that they were still responsible for sponsoring the plans as a whole, even if they themselves had opted out of directly covering contraception. These religious liberty claims went to the courts.
The Supreme Court held in Burwell v. Hobby Lobby Stores that the 1993 Religious Freedom Restoration Act protected the religious conscience rights of "closely held" private businesses to an exemption from the contraception mandate; similar litigation in Zubik v. Burwell was in the process of extending this logic to other religious groups at the time of the new rule.
"After reconsidering the interests served by the Mandate in this particular context, the objections raised, and the applicable Federal law, the Departments have determined that an expanded exemption, rather than the existing accommodation, is the most appropriate administrative response to the religious objections raised by certain entities and organizations concerning the Mandate," HHS conceded.
Friday’s action is the culmination of campaign promises made by President Donald Trump during his campaign, and subsequent acts he undertook once in office. In May, Trump signed Executive Order 13798, making clear that, "It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom."
"Faith is deeply embedded into the history of our country, the spirit of our founding and the soul of our nation," Trump said at the Rose Garden signing ceremony, surrounded by religious leaders of various denominations. "We will not allow people of faith to be targeted, bullied or silenced anymore."
While the new mandate substantially expands the kinds of organizations that can claim a religious exemption, a senior administration official said only a small number of organizations—as few as 200—are likely to take advantage of it. The official said it was expected that 99.9 percent of women will be unimpacted by this new rule.
Indeed, data suggest the mandate did not meaningfully affect women’s rates of contraceptive usage. A study by the left-leaning, Planned Parenthood-associated Guttmacher Institute found "no changes in contraceptive use patterns among sexually active women" between 2012 and 2015, a period covering the implementation of the mandate.
"We did not find evidence that U.S. women’s contraceptive method mix changed in the period following the implementation of the Affordable Care Act," said Rachel Jones, coauthor of the analysis.
Those who will be most impacted are organizations like the Little Sisters of the Poor, a Catholic order of nuns which drew national attention when its lawsuit, seeking relief from the millions in fines the contraceptive mandate would have imposed, made it to the Supreme Court.
"This was always a big, unnecessary, and divisive culture war fight," said Mark Rienzi, senior counsel at Becket Fund for Religious Liberty, the legal firm which represented the Little Sisters in their lawsuit. "Simply put, you don’t need nuns to give out contraceptives. They’re widely available. And until 2011 or so nobody even thought of the idea that the right way to get contraceptives to people was to force nuns to be involved."
Rienzi noted that while the Little Sisters will still need to pursue their lawsuit to its conclusion, the administration has clearly signaled it is unlikely to put up much of a fight.
Concurrent with HHS’s move, and also in line with Trump’s executive order in May, the Department of Justice issued new guidelines on religious liberty Friday outlining principles for understanding and respecting religious liberty applicable to the entire executive branch.
"The constitutional protection of religious beliefs and the right to exercise those beliefs have served this country well, have made us one of the most tolerant countries in the world, and have also helped make us the freeist and most generous," said Attorney General Jeff Sessions. "President Trump promised that this administration would ‘lead by example on religious liberty,’ and he is delivering on that promise."
The principles, 20 in all, do not alter existing policy, but are simply meant to "guide all agencies in complying with relevant Federal law."
The Supreme Court is expected to take up another question of religious liberty this term in the much-heralded Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The so-called "cake case" centers on the religious objections of the owners of Lakewood, Colo.-based Masterpiece Cakeshop to providing cakes for gay couples’ weddings. The plaintiffs make clear that they have no objection to providing services to gay people per se, only to participating in the wedding. The case's fate is murky: many court watchers expect that swing Justice Anthony Kennedy, author of the decision in Obergefell v. Hodges that legalized same sex marriage nationally, will be the decisive vote.