Will Free Birth Control Continue to be Available?

New Rule Provides Broad Exemption From Contraceptive Mandate

Various Birth Control Methods
How could insurance coverage for contraception change under the Trump Administration?. BSIP/UIG / Getty Images

The Affordable Care Act and its subsequent regulations ushered in expanded access to contraceptive coverage. But the Trump Administration has made it easier for employers to avoid the ACA's contraceptive coverage mandates, and is allowing employers to obtain an exemption from the coverage mandate, as opposed to using the previously-available accommodation (which ensured employees and their dependents would still have access to no-cost contraceptives).

In 2017, the Trump Administration published interim rules for moral exemptions and religious exemptions. Those rules took effect immediately, but faced swift legal challenges. A year later, in November 2018, the Trump Administration published very similar final rules for employers seeking moral exemptions and religious exemptions from the ACA's contraceptive coverage requirements.

Contraceptives Under the ACA

One of the more controversial provisions of the Affordable Care Act (Obamacare) is contraceptive coverage. Under the ACA, all non-grandfathered health plans must cover—with no cost-sharingat least one version of each of the 18 different types of FDA-approved female contraceptives (it's notable that grandfathered plans still make up a substantial percentage of employer-sponsored plans; according to a 2018 Kaiser Family Foundation analysis, 16 percent of covered workers were on grandfathered plans, which are not required to offer contraception without cost-sharing).

Although many of the ACA's provisions didn't take effect until 2014, the requirement that plans cover contraceptives has been in place since August 2012, for all new and renewing plans. For non-grandfathered plans that renewed after that point, contraceptive coverage was added at the first renewal. So by August 2013, all non-grandfathered plans included contraceptive coverage.

An exception has always existed for religious institutions. And an accommodation was available for nonprofits with religious affiliations, and it was extended in 2014 (as a result of the Supreme Court ruling in Burwell v. Hobby Lobby) to "closely-held" for-profit organizations whose owners have religious objections to the contraceptive mandate. But this was a solution that some religious employers believed was still infringing on their religious liberties.

These nonprofits and "closely-held" for-profit organizations didn't have to directly pay for contraceptive benefits, but the workaround still ensured that women covered by those employers' health plans would continue to have access to no-cost contraceptive coverage (that wasn't always uniformly enforced, however, and some women with religious employers simply did not have access to no-cost contraceptives through their employer-sponsored health plan). As of 2015, only about 3 percent of nonprofits that offered health benefits to their workers had sought an accommodation from the contraceptive coverage mandate, although 10 percent of very large nonprofits (5,000+ workers) had done so.

How Contraceptive Coverage Works

Under the ACA, insured women with non-grandfathered coverage don't have to pay anything at the time they get their birth control, assuming they opt for the contraceptives that their health insurers cover in full (the ACA requires health plans to cover at least one of each type; it does not require them to cover all versions of each type).

Although this is often referred to as "free" birth control, critics note that nothing is free. In reality, the cost of contraception is wrapped into the premiums that women and their employers pay for coverage. So for the sake of clarity, the discussion around free birth control in this article is referring to birth control that's provided with no cost-sharing at the time it's obtained.

2015 Health Affairs study found that the ACA's contraceptive mandate was saving the average oral contraceptive user $255 per year, and the average IUD user $248 per year (without the ACA's contraceptive mandate, IUDs typically cost $500 to $1,000. Pre-ACA, this had to be paid up-front, but the savings are calculated on an annual basis, spread out over the years a woman has the device). And the share of women reporting out-of-pocket spending on oral contraceptives dropped from nearly 23 percent in 2012 to under 3 percent by 2016.

The CDC also reports that highly effective long-acting reversible contraceptive (LARC) use is at an all-time high among American women. This is likely due to a combination of better education about LARC and the fact that the ACA took away the affordability barrier that sometimes prevented women from obtaining LARC prior the implementation of the ACA's requirements. LARCs are the most effective and reliable contraceptives, but their high up-front costs were often an obstacle prior to the ACA.

What's in the New Regulations?

In May 2017, President Trump Issued an executive order directing the Secretaries of the Treasury, Labor, and HHS, to "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate."

In October 2017, two new regulations were published in the Federal Register that granted employers broad access to exemptions from the contraceptive mandate: a moral exemption and religious exemption.

The regulations took effect immediately, without the usual notice and comment period, although they were quickly challenged in court, and the cases were still under appeal when the Trump Administration issued the final regulations in late 2018.

The new guidelines for moral exemptions and religious exemptions from the contraceptive coverage mandate were effective as of January 2019, and are very similar to the interim regulations that were issued a year earlier. The Kaiser Family Foundation has a helpful overview of how the new exemptions changed the contraceptive coverage mandate rules.

Under the new regulations, any employer, university, or health insurer can invoke an exemption from the contraceptive mandate (as opposed to the already available accommodation in which the employee or dependent could still obtain no-cost contraceptives, but without the employer having to pay for them). The employer can use any religious or moral grounds as the justification for the exemption. The exemption does not have to be approved by the government—employers that don't wish to cover contraception in their group health plans simply have to notify their employees of the change in benefits.

If an employer opts for an exemption, women covered by the employer's plan must pay some or all of the cost of contraceptives that the employer does not wish to cover—this can include some or all of the available contraceptive options. Under the new rules, there's no provision requiring a third-party administrator or insurer to cover the cost if the employer opts for an exemption instead of an accommodation).

The new rules explain that "The exemptions in these final rules ... remov[e] an obstacle that might otherwise lead entities or individuals with moral objections to contraceptive coverage to choose not to sponsor or participate in health plans if they include such coverage." But advocates for universally available contraception have noted that the regulations could result in fewer women having realistic access to contraceptives, particularly long-acting reversible contraceptives (IUDs and implants) that tend to have high up-front costs if they're not covered by health insurance.

More than half the states have their own rules for contraceptive coverage, some of which require employers that offer health coverage to include no-cost contraceptive coverage. But 61 percent of covered workers nationwide are covered under self-insured plans, which are regulated by federal law (ERISA) rather than state law. The ACA's contraceptive mandates apply across the board, but state-based regulations don't apply to self-insured plans.

Some nonprofits and closely-help organizations will continue to use the accommodation that ensures their workers can obtain no-cost contraceptives (without the employer having to fund them), but others will opt for exemptions, meaning that no-cost contraception might no longer be available via their health plan. A return to cost sharing or lack of health insurance coverage for contraceptives might not present much of a problem for women with incomes that put them in at least the middle class. But it could present a significant problem for lower-income women. And access to highly effective IUDs and implants could be dramatically impacted if their significant up-front costs cease to be fully covered by health insurance.

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