Trump Administration to Revise Birth Control Exemptions in Hopes of Saving Them

WASHINGTON — Having lost in two federal courts and fearing more setbacks, the Trump administration is revising rules that allow employers to deny women insurance coverage for contraceptives based on religious or moral objections.

Administration officials hope that the changes, the details of which remain unclear, will overcome the judges’ objections without fundamentally altering the purpose or the effects of the rules.

White House officials have cleared the revised rules so they can be issued jointly by the secretary of health and human services, Alex M. Azar II; Labor Secretary Alexander Acosta; and Treasury Secretary Steven Mnuchin.

It is unclear whether the administration intends to issue the final rules before the midterm elections next week. Opinion polls suggest that the birth control benefit, mandated by the Obama administration under the Affordable Care Act, is popular.

On its website, the White House Office of Management and Budget says it has finished reviewing the new rules, which will have the force of law.

“These final rules expand exemptions to protect religious beliefs for certain entities and individuals whose health plans are subject to a mandate of contraceptive coverage,” the website says. And it describes the rule protecting “moral convictions” in the same way.

Opponents of the original rules, issued last October, have vowed to continue their fight.

“Our resolve to protect a woman’s access to essential health care, including birth control, has not and will not waver,” Attorney General Xavier Becerra of California, one of the states that sued to block the rules, said Tuesday.

Richard B. Katskee, the general counsel of Americans United for Separation of Church and State, which is supporting California’s challenge, said: “The rules put in place a year ago by the Trump administration were unlawful and unconstitutional. We fully expect the new rules to be just as illegal.”

The Affordable Care Act generally requires employers and insurers to provide preventive health services at no charge. The Obama administration defined those services to include all methods of contraception approved for women by the Food and Drug Administration.

Under rules issued in 2017, the Trump administration expanded exemptions from the contraceptive coverage mandate, allowing employers to opt out if they had religious or moral objections. Judge Wendy Beetlestone of the U.S. District Court in Philadelphia blocked the administration in December, saying the Affordable Care Act did not authorize such “sweeping exemptions.”

Judge Haywood S. Gilliam Jr. of the U.S. District Court in Oakland, California, blocked the rules a week later. For a substantial number of women, he said, the rules would “transform contraceptive coverage from a legal entitlement to an essentially gratuitous benefit wholly subject to their employer’s discretion.”

Under the 2017 rules, he said, “more employers than ever before are eligible for the exemption.”

The Trump administration has appealed both decisions. And the new rules are unlikely to end the legal fight over contraceptive coverage, which has been raging in courts around the country for more than six years.

The Little Sisters of the Poor, an order of Roman Catholic nuns, told the 9th U.S. Circuit Court of Appeals, in San Francisco, last week that it should rule on the critical legal questions in the case “even if and when the agencies issue yet another version of their rule.”

Among those questions is whether the religious exemption is legal or whether it violates provisions of the Constitution barring the establishment of religion and guaranteeing equal protection of the laws.

Trump’s efforts to roll back the contraceptive coverage mandate were inspired, in part, by the Little Sisters. “I will make absolutely certain religious orders like the Little Sisters of Poor are not bullied by the federal government because of their religious beliefs,” he said a month before the 2016 election.

One challenge to the Trump administration rules was filed by the state of California, joined by Delaware, Maryland, New York and Virginia. The other was filed by Pennsylvania.

The states said they would suffer economic harm as a result of the rules because they would have to provide contraceptive coverage or pay for medical treatment and social services for more women with unintended pregnancies.

The administration rejected that argument, saying it was based on a “speculative chain of contingencies.”

“A woman who loses coverage of her chosen contraceptive method through her employer may still have access to such coverage through a spouse’s plan,” the Justice Department said in a brief. “Or she may otherwise be able to pay out of pocket for contraceptive services.”

The states have not identified any “particular woman who will lose coverage” as a result of the rules, the Justice Department said.

The Obama administration cited studies showing that as the use of contraceptives went up, the rate of unintended pregnancies came down. But the Trump administration said these studies did not prove a causal link.