On Friday, the Department of Health and Human Services implemented a broad exemption to the Affordable Care Act’s contraceptive mandate, which requires employer-sponsored health plans to cover various forms of birth control. Under the new rules, employers with a “sincerely held” religious or moral objection to birth control can refuse to grant female employees access to free contraception through their insurance plans. The rules apply to all employers, including for-profit corporations.
It is difficult to overstate the far-reaching and unprecedented nature of Friday’s announcement. After spending years trying to accommodate interests on every side, HHS suddenly abandoned its compromise approach and granted corporations an unqualified victory. Its decision imperils birth control access for millions of women, allowing employers to deny basic health care to their female workers. The Trump administration has formally elevated the rights of birth control opponents and businesses above the rights of women. Federal law now enshrines the precept that women’s health care choices may be dictated by their bosses.
Conservative religious groups have long claimed the ACA’s contraceptive mandate constitutes an attack on the free exercise of religion. They have stated that the act of compelling religious employers, even for-profit corporations, to cover contraception violated the religious conscience of people of faith. These groups also alleged that the mandate required them to subsidize abortifacients—even though the contraception in question did not, in fact, induce abortions.
The Obama administration bent over backward to accommodate these objections. From the start, the mandate accommodated religious nonprofits that objected to contraceptive coverage. These nonprofits had to notify HHS of their objection, and their insurance provider would then furnish separate payments to cover the costs of contraception for workers. Several corporations sued, asserting a right to opt out of the mandate under the Religious Freedom Restoration Act, or RFRA, and claiming that if religious nonprofits could be accommodated, for-profits were entitled to the same respect. In 2014’s Burwell v. Hobby Lobby, the Supreme Court agreed and carved out another accommodation for “closely held corporations.” The five-justice majority was persuaded that the workaround offered to religious nonprofits could readily be offered to corporations as well. HHS responded by arranging independent contraceptive coverage for the employees of those companies that opted out.
Religious organizations then sued again, alleging that even this accommodation violated federal law. The RFRA bars the federal government from “substantially burdening a person’s free exercise of religion” unless it proves a “compelling government interest” and uses “the least restrictive means” necessary. These plaintiffs argued that the mere process of notifying HHS that they intended to opt out of the mandate made them complicit in abortion and thus constituted an unlawful burden on their free exercise of religion. In Zubik v. Burwell, the eight-member Supreme Court punted the case after the government agreed to let religious groups opt out without notifying HHS. Instead, the court brokered a compromise: A religious group notifies its insurer that it will not cover contraception, and the insurer then helps women obtain coverage.
Friday’s new HHS rules take the carve-outs sought in Hobby Lobby and Zubik to new extremes. Hobby Lobby applied exclusively to “closely held corporations,” suggesting large corporations are less likely to have uniform views on the mandate. But the new rules will apply to all corporations, including those with moral objections to birth control, not exclusively religious ones. The rules also scrap the compromise notification process for employers that wish to opt out; from now on, employers may simply tell their own employees that their insurance will no longer cover contraception. There is thus no way to know whether employers are genuinely expressing religious conscience objections to birth control or just don’t feel like paying for it. Moreover, the new rules explain that the government will stop arranging independent coverage for employees of companies that opt out. As a result, millions of American women on employer-sponsored health plans may lose all insurance coverage of contraception.
HHS justifies this radical overhaul by alleging that, without a universal opt-out, the mandate itself may be unlawful under RFRA. The agency now claims that the government has no “compelling interest” in requiring employers to cover contraception through their insurance plans if they do not want to. (It evinces no concern for the female employees of such companies.) It also asserts that the mandate may not be “narrowly tailored.” As evidence, HHS cites the fact that teenage daughters of covered employees would have access to free contraception. This access, the agency writes, could encourage “risky sexual behavior” by teenagers.
All this is happening despite extensive research showing that the contraception mandate was urgently necessary to protect the health of women, that the cost of contraception decreased radically after the mandate was put in place, and that the millions of American women who are insured through their employers have better outcomes when they have access to affordable preventive reproductive care.
When the RFRA was enacted in 1993, it was intended to balance the competing interests of religious dissenters against the public good. With a stroke of the pen, HHS has eviscerated medically necessary and affordable preventive care for millions of women, because their bosses say so. This is the same posture the Justice Department has adopted in a case involving the religious objections of bakers who feel they are being conscripted by public accommodations laws to celebrate same-sex weddings: The interests of those losing protections are immaterial. The needs of the religious dissenters are paramount. That isn’t what the Constitution demands, and it surely wasn’t what the RFRA promised. The needs of millions of women don’t count. Their bosses will take care of them. Or not.
HHS assures us this is all OK, because no employers will avail themselves of this option—that the change will leave “99.9 percent of women” with access to free birth control. Hopefully that’s right; it hasn’t been the basis for a decision to withhold entitlements before. Regardless, the assumption that corporations act in good faith when they withhold benefits and also act in good faith when they claim to be religious dovetails perfectly with broad Trump administration claims that businesses are people and people are a nuisance.
As University of Michigan law professor Nicholas Bagley points out, these rules are classified as “interim,” but they will take effect immediately. This creates a problem for the government. Under federal law, new rules must generally go through a period of “notice and comment,” allowing the public to weigh in. An agency can skip this process only when it has good cause, a narrow exception typically used for emergencies.
There is probably not good cause for HHS to introduce the new rules without notice and comment. They are thus quite vulnerable to a legal challenge, which, if successful, would temporarily block the policy. HHS, however, could then re-implement the same rules using the proper procedures. The ACLU already plans to file suit against the substance of the rules, arguing they violate the First Amendment’s Establishment Clause by accommodating religion in a way that imposes burdens on third parties. But the Supreme Court’s five conservative justices would almost certainly dismiss the burdens on third parties as they did in Hobby Lobby. Women, they will say, should just learn to deal with it.
At about the same time that HHS issued its rules, Attorney General Jeff Sessions sent a guidance memo to all federal agencies and attorneys reminding them to respect religious liberty. The memo is vague but centers around the claim that “free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.” Civil rights groups fear that the memo will allow government employees and contractors to discriminate against LGBTQ people by citing their religious beliefs. That interpretation would be consistent with the Trump administration’s broader approach to LGBTQ issues; Sessions’ Justice Department has prioritized the rollback of rights for sexual and gender minorities.
Reproductive health care does not have to be a zero-sum game. Following Hobby Lobby and Zubik, the Obama administration strove to craft a system that guaranteed women’s access to free contraception while respecting employers’ personal opposition to birth control. It wasn’t perfect, but it represented a good faith effort to balance the health care needs of women while affording a wide berth to religious dissenters. The Trump administration just blew up that balance, informing millions of female employees that their interests are trivial compared with those of religiously inclined corporations. It’s yet another message to religious groups that there is no law that cannot be broken or bent to accommodate them, and that no other interest need even be considered.