Trump HHS Unveils New Reg Rolling Back Obamacare Birth Control Mandate

Alex Brandon/AP

The Trump administration officially unveiled Friday a long expected regulation change that would roll back the Affordable Care Act’s contraceptive mandate by significantly expanding the opportunity for employers and other entities to get an exemption from it.

The so-called “interim rules,” posted on the federal register, tracks closely with a draft leaked to Vox last Spring. It is expected to draw legal challenges by women’s health groups.

By treating the regulation change as an “interim rule,” the Trump administration is using a fast-track process that avoids the typically months-long public comment period. Interim rules go into effect immediately after they are posted to the Federal Register (though a public comment period will happen while it is in effect.) When the draft version surfaced last spring, legal experts pointed to the process as making the rule more vulnerable to legal challenge, not less.

On the substance, the rule represents a dramatic shift in the federal government’s position on Obamacare’s contraceptive mandate. The Obama administration, in the many lawsuits it faced challenging the mandate, argued that the government had a compelling interest in guaranteeing women’s access to contraceptives. The Trump administration is now doing a full reversal on the position in the two interim rules published Friday.

“Although the Departments previously took the position that the application of the Mandate to certain objecting employers was necessary to serve a compelling governmental interest, the Departments have now concluded, after reassessing the relevant interests and for the reasons stated below, that it does not,” the new rules’ preamble said.

The new regulation goes on to grant an exemption to the mandate not just to those with religious objections but entities with “moral convictions” against offering birth control coverage. Under Obama’s HHS, exemption-seekers had to go through a notification process that triggered a third party offering the contraceptives instead — a process that was subject to litigation that was never fully settled. The process still exists under the Trump rule, but employers are now not required to follow it and instead may merely end coverage of birth control once they’ve informed their employees of the change in their coverage plans.

Furthermore, the new rule opens up the exemption to basically anyone who wants it: from a giant, publicly held cooperations to educational institutions to even individuals who object to contraceptives being included in their plans.

The Trump administration quickly downplayed the effects of the regulation change on women seeking contraceptives. The rule document pointed to the government programs that separately offer some access to birth control (programs the administration has sought to cut) and to the fact that there are already some non-compliant Obamacare plans not covering the services that were grandfathered in.

Top women’s health groups were quick to disagree with this assessment of the regulation’s impact.

“The interim final rules released by the Trump administration today are a discriminatory, damaging attack on women’s health and economic security,” Debra Ness, president of the National Partnership for Women & Families, said in a statement.