The Trump administration is reportedly planning to roll back the Affordable Care Act’s mandate that requires employers to include cost-free contraception in their health insurance plans. The Supreme Court ruled in the 2014 Burwell v. Hobby Lobby decision that “closely held” private companies, in addition to religious groups and organizations, could refuse to offer birth control coverage on moral grounds. Under a drafted regulation published by Vox on Wednesday, any employer would be able to claim moral or religious objections to the contraceptive mandate, exempting them from the federal requirement.
“Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market,” the draft states. It also argues that the “substantial governmental resources” have been spend defending the mandate against lawsuits brought by organizations that claim religious exemptions, and capitulating with blanket permission to refuse to cover birth control would resolve the still-pending suits.
Just one month ago, it looked like the Trump administration might be preparing to defend the ACA’s contraceptive mandate. Attorney General Jeff Sessions filed a request in late April for a two-month extension during which to negotiate a compromise, as ordered by the Supreme Court, with a coalition of religious groups that has challenged the mandate in court. These groups contend that the Obama administration’s concession, which allowed them to opt out of birth-control coverage if they submitted a form indicating their religious objection, would still make them complicit in a sinful act, even though the form would make sure any employee contraception would be covered by outside entities. “Maybe these guys are too busy to restrict birth-control access right now,” I wondered at the time. “Maybe they don’t know what they’re doing, or they’re lulling progressives into complacence in preparation for some big unexpected reversal.”
Now, it looks like my latter, most pessimistic guess was the right one. Instead of continuing or ceasing its defense of the mandate in this one suit, the Trump administration is planning on proactively expanding the capacity for religious or moral exemption to anyone who wants it: gigantic public corporations, secular universities that offer health insurance to students, random companies that want to give as little health coverage as possible to their employees without flouting federal law. If the Office of Management and Budget allows the regulation to go forward after its current review period, companies of any size and affiliation will be able to offer any religious or moral reason they can come up with—that contraception encourages extramarital sex, for instance—as an excuse to deny employees the birth-control coverage they’ve been guaranteed under the ACA.
If the Trump administration submitted the draft regulation to OMB in the form Vox obtained, health insurers would also be able to opt out of contraception coverage, though if any insurers wish to do so, they’ve been very quiet about it. Employers that decide to request an exemption could do so as soon as the regulation goes through OMB, potentially costing employees immediate out-of-pocket expenses for medication they’ve been getting for free for years.
The vast majority of Americans don’t want this to happen. A 2016 Pew survey found that more than two-thirds of respondents, including half of respondents who regularly attended church services, thought employers with religious objections should still have to cover contraception for their employees. The Trump administration’s latest move will be expensive for women, which the president may not care about. But it will also be wildly unpopular, and unpopular is one thing Trump very much doesn’t want to be.