Trump Proposes New Way for Employers to Skirt Birth Control Mandate
Posted November 17, 2018 2:43 p.m. EST
WASHINGTON — The Trump administration is making it easier for employers to exclude birth control from health insurance benefits provided under the Affordable Care Act, and it has come up with a new justification, saying that female employees can obtain contraceptives at family planning clinics for low-income people.
That, in turn, could increase demand for clinic services, which are already squeezed. The plan is one of several recent proposals that could affect access to birth control, such as requiring the physical separation of services at clinics and strict new rules about insurance payments.
The health law generally requires employers to cover preventive health services, and the government says those include contraceptives for women. Under final rules published this past week, employers can obtain an exemption if they object to some or all forms of contraception based on their “sincerely held religious beliefs” or moral convictions.
In a separate proposed rule, the Trump administration said women denied contraceptive coverage by their employers would be eligible for the family planning program created by Congress in 1970 under Title X of the Public Health Service Act.
Clinics in that program serve 4 million people a year, primarily low-income women and adolescents. Clinics must give priority to members of low-income families, defined as those with annual incomes less than or equal to the poverty level ($20,780 for a family of three).
Demand for clinic services already exceeds what can be provided with the available funds, $286.5 million a year.
Under the Trump administration’s proposal, some women would be eligible for free contraceptives regardless of their income.
The proposed rule says that “a woman can be considered from a ‘low-income family’ if she has health insurance coverage through an employer” that, for religious or moral reasons, refuses to cover the contraceptives she seeks.
Administration officials said the proposed rule, issued by Alex M. Azar II, the secretary of health and human services, would meet the needs of women while deflecting legal challenges to the president’s birth control policy.
The proposed rule will “preserve conscience protections” for employers and provide free or low-cost family planning services for women who need them, the administration said.
But Clare Coleman, president and chief executive of the National Family Planning and Reproductive Health Association, which represents many clinics, said the proposal would “hijack Title X programs and use their limited federal funds to subsidize employers’ refusal to comply with the contraceptive coverage requirement.”
Groups that have fought the contraceptive coverage mandate, like the Little Sisters of the Poor, an order of Roman Catholic nuns, praised the policy.
“It shows that the government has ways of delivering contraceptive services without conscripting the Little Sisters of the Poor to help,” said Mark L. Rienzi, president of the Becket Fund for Religious Liberty, which represents the nuns in several court cases.
Gregory S. Baylor, a lawyer at the Alliance Defending Freedom, a conservative Christian group, said: “With these regulations, President Trump kept his promise that people of faith would not be bullied on his watch. At the same time, contraceptives will remain readily available to those who wish to use them.”
The latest moves by the administration will face close scrutiny after Democrats take control of the House in January.
Rep. Nita M. Lowey of New York, the senior Democrat on the House Appropriations Committee, has tried to block the new family planning rule. Her efforts were stymied by Republicans this year, but Lowey is in line to become the chairwoman of the committee next year, giving her more leverage over the administration. Federal law, unchanged since 1970, says that Title X funds cannot be used in “programs where abortion is a method of family planning.” The current rules, adopted by the Clinton administration in 2000, say that clinics must give pregnant women an opportunity to receive information and counseling on prenatal care, infant care, adoption and “pregnancy termination.”
The Trump administration has proposed sweeping changes to those rules to “ensure that federal funds are not used to fund the abortion industry in violation of the law.”
Rep. Diana DeGette, D-Colo., has criticized the move, saying, “The Trump administration is working furiously to turn back the clock on women’s rights.”
President Donald Trump has also proposed eliminating the requirement for clinics to provide abortion-related information, counseling and referrals on request. As a result, the administration said, Title X funds would be available to “health care providers who refuse to participate in abortion-related activity such as counseling and referrals.”
Under the current rules, clinics that receive Title X funds must provide a broad range of “medically approved family planning methods.” The Trump administration’s proposal would delete the words “medically approved.” The proposal also makes clear that clinics would not have to provide every effective method of contraception.
In contrast, insurers and employer-sponsored health plans are generally required to cover all forms of contraception that have been approved for women by the Food and Drug Administration.
The Trump administration is also proposing stringent rules to require the physical separation of family planning and abortion services at clinics that offer both. Federal health officials estimate that 10 to 20 percent of Title X sites do not comply and would have to spend an average of $20,000 each to meet the proposed requirement.
Trump would like to go even further. His goal, he told an anti-abortion group in May, was to “prohibit Title X funding from going to any clinic that performs abortions.”
Under the Affordable Care Act, insurers are allowed to cover abortions but cannot use federal money to help pay for the coverage. Insurers are allowed to send consumers a single monthly bill itemizing the amount of the premium earmarked for abortion and for other coverage, and consumers can pay the entire premium with one check.
The Trump administration proposed this month to tighten requirements for separate billing and payment. Insurers would have to send the bills in separate envelopes with separate postage, or in separate emails, and consumers would be instructed to make separate payments by check or electronic funds transfer.