Move to undo employer-benefit mandate could spark immediate litigation

WASHINGTON—The Trump administration said Friday it is paring back an Obama -era requirement that employer-provided health benefits cover contraception, re-energizing a volatile debate on the role of government and religion in health care.

The new rules, announced by the Health and Human Services Department, immediately grant a sweeping exemption to employers who object to the mandate that employers cover contraception without copayments or other out-of-pocket costs. Employers could now omit coverage of some or all contraceptives on either religious or moral grounds.

Religious conservatives welcomed the move as a recognition of their right to act according to their beliefs, while liberal groups called it a step backward in respecting women’s health needs. Activists on both sides saw the move as part of a broader administration effort to unwind much of the 2010 Affordable Care Act.

The pulling back of the contraceptive requirement delivered on a pledge by President Donald Trump to social conservatives. Caitlin Oakley, an HHS spokeswoman, said the new rules “affirm the Trump Administration’s commitment to upholding the freedoms afforded all Americans under our Constitution.”

The new changes addressed the complaints of some Catholic employers who object to most forms of birth control, as well as other religious employers with specific objections to emergency contraception. They argued the mandate made them complicit in what they consider a sin.

“This is very welcome news for us and for everybody, because religious liberty is such a fundamental right,” said Archbishop William Lori, chairman of the religious freedom committee of the U.S. Conference of Catholic Bishops. “It’s been something that many people, not just in the Catholic Church but beyond, have been working for.”

But an array of groups plan to argue in court that the change unfairly imposes employers’ beliefs on their workers. “This is an affront to women’s rights and women’s health, and we are prepared to see the government in court,” said Brigitte Amiri, a senior staff attorney at the American Civil Liberties Union.

The ACLU immediately filed a legal challenge, and other groups–including the National Women’s Law Center–announced their intent to sue as well.

On Friday evening, 18 Democratic attorneys general signed a joint letter to the Trump administration, warning that the rule “violates [women’s] right to privacy that is so evident in Supreme Court doctrine.” Earlier in the day, attorneys general in California and Massachusetts filed separate lawsuits.

That ensures that the volatile intersection of contraception, health coverage and religion, which entangled the Obama administration for years, will continue to be fought over for the foreseeable future.

The impact of the contraception rule has been hotly contested since it was created six years ago. In letting employers opt out of offering all or some contraceptive coverage, the change would render moot a “workaround” designed by the Obama administration in which female workers could get contraception coverage directly from insurers if their employers objected to providing it.

Religiously affiliated employers considered that move insufficient because the insurance plans they sponsored were still being used as the vehicle for providing birth control coverage.

President Barack Obama’s administration in 2011 added contraception to a list of preventive benefits that the ACA required employers to cover without out-of-pocket costs. Many women’s groups applauded the decision at the time as a belated recognition of a fundamental health need.

The mandate initially exempted houses of worship but required compliance from religiously affiliated institutions such as Catholic hospitals and universities.

Dozens of plaintiffs, including some for-profit corporations, sued the Obama administration, arguing the mandate forced them to violate their religious beliefs. The Supreme Court ruled in a 2014 case brought by the arts-and-crafts chain Hobby Lobby that “closely held” companies could invoke religious objections to avoid covering contraception.

Obama administration officials engineered the workaround in response. Last year, the Supreme Court, short-handed after the death of Justice Antonin Scalia, sent back to lower courts a case about the legality of that arrangement.

As a presidential candidate, Mr. Trump pledged support for Catholics and evangelical Christians involved in the years-long litigation. In an October letter to the Catholic Leadership Conference, Mr. Trump called the rule an “onerous mandate” reflecting “a hostility to religious liberty you will never see in a Trump administration.”

Many of the religious plaintiffs’ lawyers now serve in the Trump administration, including Solicitor General Noel Francisco, who argued for Catholic challengers in the Supreme Court. Matt Bowman, deputy general counsel of HHS, represented many of the evangelical Christian litigants.

The administration Friday issued two separate rules: one for religiously affiliated institutions such as Catholic hospitals, charities and universities, and another for nonreligious employers who voiced moral, rather than theological, objections to contraceptive coverage. The administration argued that because free or low-cost contraception was widely available through various means including government programs, there was no compelling need for the government to override religious beliefs.

The rule on moral objections cited a case brought against the Obama administration in 2015 by the March for Life, an antiabortion group that contends certain types of emergency contraception could be abortifacients. March for Life, which isn’t a religiously affiliated organization, was represented by Mr. Bowman.

Some legal analysts said the decision to issue the two rules separately signal that the administration doesn’t believe legal arguments for both exemptions are equally strong. “The moral exemption to the contraception mandate is on very thin legal ice, and they probably didn’t want a failure of the moral exemption to imperil the religious exemption,” said Nicholas Bagley, a law professor at the University of Michigan.

The administration said the separate rule for moral opposition was carved out because nonreligious organizations had filed their own legal challenges to the Obama rule.

The administration on Friday said that around 120,000 women might be affected by the change, citing the existing exemptions and the small number of plaintiffs that had filed suit against the Obama-era requirements.

Reproductive-rights advocates, however, called the rollback a major step back in a decadeslong fight to secure access to women’s reproductive care. Lawyers for those groups said the change could amount to sex discrimination.

They also plan to argue that it amounts to religious discrimination if a worker’s contraceptive coverage depends on her employer’s beliefs.

“To take this away from women does nothing to improve the health of the United States and actually increases the risk of maternal mortality and some kinds of cancers,” said Hal Lawrence, chief executive of the American Congress of Obstetricians and Gynecologists.