Joy Branham and Stanley Carlson-Thies, June 20th 2017

In late May, a draft regulation that would significantly change the controversial contraceptives mandate was leaked. An actual final regulation may be quite different; in the meantime, the leaked proposal suggests that the Trump administration has adopted a broader understanding of religious freedom and moral concern than the Obama administration.

The contraceptives mandate for employer health plans was first promulgated in 2011 in connection with the Patient Protection and Affordable Care Act (ACA). The ACA requires coverage of many preventive services without cost-sharing by employees; with respect to women, the Obama administration decided by regulation that such preventive services must include all FDA-approved contraceptive devices, drugs, and services. Thus employer plans are required to include coverage of birth control pills, sterilization, and the morning-after pill and other contraceptives considered by some to be abortifacients.

The mandated coverage has been controversial from the start and eventually led to more than 100 lawsuits by a range of organizations that have religious and pro-life concerns. The original regulation included an exemption for religious employers, but the exemption was very narrow, not even covering all houses of worship. After protest, the exemption was slightly broadened and an “accommodation” was created for other religious organizations, such as religious colleges, hospitals, and charities. The accommodation, which has been changed multiple times, has been at the center of the lawsuits. Organizations have been protesting that its requirements, while seemingly allowing them to offer insurance coverage without contraceptives they regard as religiously objectionable, result in coverage by their insurers for exactly those same contraceptives. Some businesses also protested, resulting in a U.S. Supreme Court case lifting the mandate from certain closely-held companies with a religious objection (the Hobby Lobby case, settled in 2014).

President Trump’s May 4, 2017, Executive Order “Promoting Free Speech and Religious Liberty” directed federal agencies to start “considering issuing amended regulations . . . to address conscience-based objections” to the mandate. The leaked regulation seems to be a response to this directive.

The leaked draft regulation makes many changes but retains a presumption that the federal government should promote women’s access to contraceptives. The mandate would remain as a general requirement for employer health plans (but note that many women have never received contraceptives coverage via the mandate, which does not apply to churches, smaller employers, the military, and many, sometimes very large, employers who retain grandfathered plans). And the current accommodation would remain as an option that non-exempted religious organizations may choose. According to one study cited in the leaked draft, the contraceptives mandate has “applied contraceptive services to 55 million women and has led to a 70 percent decrease in out-of-pocket costs for contraception for those who are commercially insured.”

The leaked regulation stresses that the federal government maintains various programs that expand access to contraception, although these programs are aimed at particular groups. Still, the federal government itself has identified the women most at risk for an unintended pregnancy as women “aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority.” But a study cited in the draft regulation observes that in 28 states where “contraceptive coverage mandates have been observed statewide, those mandates have not necessarily lowered rates of unintended pregnancy (or abortions) overall.” The contraceptives mandate only ever covered employer plans and student insurance at private colleges and universities—it was not specifically tailored to those women most at risk of unintended pregnancy. The draft regulation does not alter the other government programs through which women can get free or subsidized contraception.

The big and important changes proposed in the leaked regulation concern whose objections to contraceptive coverage should result in an exemption and in the changed framework for evaluating religious claims. The Obama administration weighed heavily a government interest in further expanding contraceptives coverage for women, while downplaying the concerns of many religious people and organizations and also the concerns of people and organizations with a moral or conscientious objection, not religious, to contraceptives coverage. The leaked draft regulation, in sharp contrast, stresses the importance of government recognizing the legitimate claims of conscience and religion.

The draft regulation expands in three ways the full exemption to offering contraceptives coverage.

Expanded definition of exempt religious employers. The most important change is to the category of employers that are fully exempt from the mandate. Currently, only churches (and other houses of worship) and certain church-controlled organizations are actually exempt from the requirement, with other religious organizations only offered the accommodation. If the leaked regulation goes into effect, then any religious organization could claim the full exemption. So could any for-profit organizations with a recognized objection to the mandate. As the draft states, the “expanded exemption in these rules covers employers that have religious beliefs or moral convictions objecting to coverage of all or a subset of contraceptives or sterilization and related patient education and counseling. The rules cover any kind of employer.”

Moral objections, not only religious claims. Note in that quotation that the objection can be “moral” and not only “religious.” Several of the lawsuits are from organizations with pro-life, but not religious, convictions. The expanded exemption would, as the regulation says, “protect objecting nonreligious, moral entities and persons that wish to participate in health care coverage without violating their deeply held convictions with respect to coverage of contraceptive services.” Note that protections in the field of health care commonly extend beyond religious belief to conscience claims.

Individuals, not only organizations. While only organizations are eligible for the current exemption and accommodation, the leaked draft points out that individuals, too, may object to insurance coverage that includes services and drugs that violate their beliefs. Accordingly, it offers an exemption for objecting individuals.

While the draft regulation proposes a great expansion of the current exemption, it is a controlled expansion. Religious or moral objections have to be sincerely held—they cannot be created out of thin air on a whim. Moreover, the exemption only extends as far as the religion- or conscience-based objection. For example, if a Protestant organization’s sincerely held beliefs require the organization to object to abortifacients, the organization’s health plan would not be exempt from providing other types of contraceptives. And recall that the current accommodation would remain, but now as only one of several options for religious employers; thus, as happens now with the accommodation, an employer with religious or conscience concerns may choose to specify health coverage that does not include some or all contraceptives while accepting that their insurer would arrange for such coverage for the employees.

As many critics of the leaked draft have argued, the draft regulation will likely result in fewer women obtaining free contraception, although there is great dispute about the number. The draft points out that the health reform law does not obligate the federal government to supply contraceptives, but the leaked document does acknowledge a government interest in reducing unintended pregnancies. The mandate, as noted above, is not tailored to this goal, although the federal government does pursue it in other ways. The regulations list a few ways in which women can still receive free or subsidized contraception, “including Medicaid (with a 90% Federal match for family planning services), Title X, health center grants, and Temporary Assistance for Needy Families.”

Is the draft regulation’s balancing of the different interests optimal? Can the federal government better protect the concerns of both employing organizations and their employees? While there is no way to know whether the leaked regulation will be issued without change or even at all, a vigorous discussion has already begun about the different approach the draft takes to such matters.

From the perspective of religious organizations that object to providing coverage of some or all of the FDA-approved contraceptives, the draft regulation is heartening for extending them new protections, without eliminating access to contraceptives and abortifacients for others. And it is a signal advance to see the broader understanding of which organizations have religious claims that government must respect.