How A Future President Could Undo Obama’s Birth Control Rule

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If President Obama can giveth, a future president can taketh away.

In its ongoing tug-of-war with religious conservatives, the Obama administration rolled out a new rule on Friday to ensure cost-free access to birth control for women who lose it due to the Supreme Court’s Hobby Lobby ruling. The new rule requires insurance companies to pay for the full cost of contraceptives that an employer legally opts out of covering.

But even before the battles began, the original rule requiring coverage of 20 types of contraceptives, under Obamacare, was made on an administrative level, at the discretion of the president. That means a future president could reverse it by overcoming modest hurdles, should he or she choose to, legal experts say.

The Affordable Care Act does not specify what services must be covered for free under the preventive care benefits requirement, the legal basis for the birth control mandate. The statute left that judgment to the Department of Health and Human Services.

“The statute only says that insurers and group health plans have to cover women’s preventive services as defined by [the Health Resources and Services Administration]. HRSA asked the Institutes of Medicine to weigh in. IOM said cover all FDA-approved contraceptive services. So HHS took that up,” said Timothy Jost, a health law professor at Washington & Lee University.

“A future president could appoint an administrator for HRSA that provides a different view and leads to a different outcome,” he said.

That doesn’t mean it’ll be a cakewalk. The administration would be legally obligated to explain why the old rule was incorrect and why the new rule was correct. If it faces a lawsuit, it could have to prove that the rule change was based on sound reasoning and not “arbitrary” or “capricious.”

“To the extent that these decisions are value-laden decisions, a president with a different value system could reach a different conclusion. The problem is that … in a case like this it can be tricky because they’d have to back up that conclusion with scientific evidence,” said Nick Bagley, a law professor at the University of Michigan. “Agencies are allowed to change their minds. But there’s lots of case law saying that when they do they have to offer a reasoned explanation.”

Republicans overwhelmingly oppose the birth control mandate; a GOP president would face considerable pressure to take executive steps to unwind it.

That’s why the White House continued to urge Congress to pass a legislative solution on the day that it rolled out the accommodation for female employees.

“Congress can and should act to ensure that any women affected by recent
Supreme Court decisions get the same coverage options that everyone else
is offered,” said White House spokesman Eric Schultz. “Legislative action is the quickest and best way to ensure women get access to services they need.”

ABOUT THE AUTHOR

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.
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