Will Free Birth Control Disappear Under President Trump?

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 women are now wondering whether insurance coverage for contraceptives is going to disappear, and whether they should get an IUD in the near future, in case they revert to costing several hundred dollars.

And based on moral exemption and religious exemption rules published in the Federal Register on October 6, there is certainly cause to be concerned. But the changes immediately faced legal challenges and the number of employers expected to utilize the exemptions are fairly low.

Let's take a look at the ACA's contraceptive mandate, the impact it's had, and what we can reasonably expect going forward.

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 the leaked draft regulation, 36.5 million people with employer-sponsored coverage are 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 was granted for religious institutions, however, and expanded in 2014 (as a result of the Supreme Court ruling in Burwell v. Hobby Lobby) to include "closely-held" organizations whose owners have religious objections to the contraceptive mandate. 

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 the woman has the device).

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.

Expanded Access to Contraception Reduces Abortions & Teen Birthrate

In November 2016, the CDC published data showing that by 2013, abortion rates were at an all-time low in the U.S.

Abortion opponents note that this could also be due to the plethora of laws that have been passed in various states to limit access to abortions in recent years. But evidence from Colorado—which is not among the states that have passed laws restricting access to abortions—indicates that access to contraceptives is indeed playing a key role: The Colorado Family Planning Initiative began providing long-acting reversible contraceptives (IUDs and implants) to teens and low-income women in 2009, prior to the ACA's enactment. By 2014, the teen birth and abortion rates had dropped by 48 percent.

IUDs and Implants Gain Popularity Under ACA Rules

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.

Legislative Efforts to Repeal the ACA Have Failed

The Trump Administration and the GOP-controlled Congress started 2017 with high hopes of repealing the ACA, but that did not come to pass in 2017. House Republicans passed the American Health Care Act (AHCA) in May 2017, but the Senate did not pass any of its versions of the legislation, and the September 30 end of the fiscal year was the deadline for using reconciliation to be able to repeal the ACA with only 50 votes (plus a tie-breaker vote from the vice president).

The House version of the AHCA and the various bills introduced in the Senate would not have eliminated the ACA's preventive coverage mandate, but most of them would have allowed states to seek waivers in order to redefine essential health benefits. Preventive care, which includes contraception, is one of the ACA's essential health benefits. If legislation were to be enacted that allowed states to obtain waivers that redefine essential health benefits, contraceptive coverage could theoretically no longer be required. 

The various ACA repeal bills that were considered by Republican lawmakers in 2017 would also have ended federal funding for Planned Parenthood for one year, reducing access to contraception among women who rely on Planned Parenthood for their care.

But none of those bills passed, and October signified the end of the immediate opportunity to enact legislation to repeal the ACA. Republican lawmakers vowed to continue the fight to repeal the law, but the Trump Administration has also been working to make changes via executive orders and new regulations.

What's in the New Regulations?

On May 4, 2017—the same day House Republicans passed the AHCA—President Trump Issued an executive order that directs 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." This set the stage for new regulations, which, according to the New York Times, the Trump Administration was considering in late May.

On May 31, Vox obtained a leaked draft of a new HHS and IRS regulation, which would substantially undermine the current contraceptive mandate. Nothing happened for the next few months, and the focus throughout the summer was generally on the legislative efforts to repeal the ACA.

But on October 6, two new regulations were published in the Federal Register that allow employers broad access to exemptions from the contraceptive mandate: a moral exemption and religious exemption.

The regulations take effect immediately, without the usual notice and comment period. Comments are being accepted for 60 days (through December 5), but the regulations took effect October 6. HHS normally accepts public comments on proposed regulations, considers them, and explains how the public comments shaped the final regulation.

But in this case, they're saying they have "good cause" to implement the regulations immediately and that it would be "impracticable and contrary to the public interest to delay putting these provisions in place until a full public notice-and-comment process is completed." In defense of skipping the notice and comment period, HHS also claimed they don't need to go through the comment process again, since they already obtained comments on the contraceptive mandate issue when regulations were published in previous years. It's worth noting, however, that these new regulations are vastly more far-reaching than the contraceptive mandate exemptions that HHS previously promulgated, and that comments would likely be quite different as well

Under the new regulations, any employer, university, or health insurer can invoke an exemption from the contraceptive mandate, with 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.

The new rules explain that "Expanding the exemption removes religious/moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market." But advocates for universally available contraception note that the impact of the regulation will be that fewer women have 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.

When the draft of the regulations was leaked in May, the ACLU promised to  "see the Trump administration in court if they try to follow through on these plans." And indeed, the ACLU filed suit immediately on October 6, as did Massachusetts Attorney General Maura Healey.

To be clear, the Obama Administration already took steps to ensure that religious employers didn't have to directly pay for contraceptive benefits, but the workaround still ensures that women covered by those employers' health plans continue to have access to no-cost contraceptive coverage (that isn't always uniformly enforced, however, and some women with religious employers do not have access to no-cost contraceptives through their employer-sponsored health plan). But this is a solution that some religious employers believe is still infringing on their religious liberties.  

What Happens Next?

The new regulations faced swift legal challenges, and it's too soon to tell if they'll hold up in court. In a statement about the rules, HHS claimed that the new rules "will not affect over 99.9 percent of the 165 million women in the United States" because they expect only about 200 entities—the ones that already filed lawsuits over the contraceptive mandate based on religious or moral objections—will invoke exemptions under the new rules. 

But consumer advocates worry that the rules could end up being much more far-reaching, and that the new rules present a major loophole in the contraceptive mandate. 

Several states have implemented their own contraceptive mandates, but those only apply to state-regulated plans. Self-insured plans (which is what most very large employers use) are regulated under federal, rather than state, law. The ACA's contraceptive mandates apply across the board, but state-based regulations don't apply to self-insured plans.

Former Rep. Tom Price (then a Republican Representative from Georgia, who later became Secretary of HHS for a brief time under the Trump Administration before resigning in September 2017) claimed in 2012 that "not one" woman was unable to afford contraceptives prior to the ACA's mandate. But a ​2010 survey conducted by Planned Parenthood found that 34 percent of women had "struggled with the cost of prescription birth control at some point in their lives."

In 2012, Georgetown University law student, Sandra Fluke, testified before a congressional panel regarding contraceptive coverage under the ACA. She testified that 40 percent of female Georgetown University law students reported that the university health plan's lack of coverage for contraceptives had caused them to struggle financially.

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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