On May 24, the U.S. Department of Health and Human Services (HHS) issued a proposed rule (published in the Federal Register on June 14) to substantially revise regulations implementing and enforcing Section 1557 of the Affordable Care Act (ACA), a civil rights provision that prohibits discrimination on the basis of race, color, national origin, sex, age or disability in any health program or activity that receives federal funding. While Section 1557 went into effect on March 23, 2010, much of the rule that applies to private health insurance went into effect in July 2016.

The proposed rule will repeal and replace significant portions of Section 1557, such as the definition of discrimination “on the basis of sex” and make Section 1557 inapplicable to most self-funded and fully insured group health plans.

Discrimination “on the basis of sex”

Section 1557 defines discrimination “on the basis of sex” to include discrimination based on “gender identity” and “termination of pregnancy.” It is this definition of sex discrimination that was challenged in August 2016 (See Franciscan Alliance, Inc., et al. v. Burwell, et al., 227 F. Supp. 3d 660 (N.D. Tex. 2016)). The plaintiffs argued that they would be forced to provide certain health care services against their medical judgment, and that Section 1557 violated the Administrative Procedure Act (APA) and Religious Freedom Restoration Act (RFRA). It is important to note here that Section 1557 does not require the provision or coverage of abortions; it only prohibits discrimination against women who have had an abortion.