Biden Administration Targets Trump-Era Exemptions to Birth Control Coverage

In an attempt to expand access to birth control under the Affordable Care Act (ACA), the Biden administration took aim at moral and religious exemptions in a proposed rule released on Monday.

“Now more than ever, access to and coverage of birth control is critical as the Biden-Harris Administration works to help ensure women everywhere can get the contraception they need, when they need it, and — thanks to the ACA — with no out-of-pocket cost,” said HHS Secretary Xavier Becerra in a press release.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which has allowed for state laws that restrict access to abortion, placed “a heightened importance on access to contraceptive services nationwide,” the administration said in a fact sheet.

“If this rule is finalized, individuals who have health plans that would otherwise be subject to the ACA preventive services requirements but have not covered contraceptive services because of a moral or religious objection, would now have access,” noted CMS Administrator Chiquita Brooks-LaSure in the press release.

Under the ACA, most health plans are required to offer coverage for birth control without any out-of-pocket costs. However, a 2018 final rule extended exemptions for religious and moral beliefs to allow private health plans and insurers to leave out coverage of contraceptive services.

“The 2018 rules include an optional accommodation that allows objecting employers and private colleges and universities to completely remove themselves from providing birth control coverage while ensuring women and covered dependents enrolled in their plans can access contraceptive services at no additional charge,” the press release stated. However, under those Trump-era rules, women and their dependents could only access contraception if their employer or college or university “voluntarily elects the accommodation,” which, consequently, left many women without access to free contraception.

To address this gap, the proposed rule would retain the religious exemption for those entities and individuals who object to birth control, as well as the optional accommodation, while at the same time putting in place “an independent pathway,” which the administration refers to as “an individual contraceptive arrangement” through which individuals whose health plans or coverage is “arranged, or provided by objecting entities” that either don’t qualify or haven’t opted for accommodations, can obtain contraceptive services without any out-of-pocket costs from a “willing provider or facility” that provides those services, according to the fact sheet.

If finalized, this new rule would give women and covered dependents a mechanism for accessing no-cost birth control even if their plan or insurer has a religious exemption, and even if those entities, when eligible, chose not to leverage optional accommodations.

“Employers and universities should not be able to dictate personal health care decisions and impose their views on their employees or students,” said Alexis McGill Johnson, president and CEO for the Planned Parenthood Federation of America, in a press release responding to the draft rule.

“The ACA mandates that health insurance plans cover all forms of birth control without out-of-pocket costs,” continued McGill Johnson. “Now, more than ever, we must protect this fundamental freedom. We appreciate the Biden-Harris administration for taking steps to reverse this harmful policy and continue to champion sexual and reproductive health care.”

HHS, the Department of Labor, and the Department of the Treasury also released guidance in July 2022 to clarify the scope of the ACA’s birth control coverage protections.

In addition, in late January, HHS released a report detailing other actions the agency has taken in the realm of reproductive healthcare since the Dobbs decision, including restating the agency’s commitment to abortion care under the Emergency Medical Treatment & Labor Act (EMTALA) and helping patients to protect their private medical information on their smartphones.

Stakeholders will have 60 days to comment on the proposed rule.