Biden moves to undo rule allowing employers to opt out of contraceptive coverage

The Biden administration on Monday proposed a rule that would make it easier for women to obtain birth control at no cost under the Affordable Care Act. It would reverse a Trump administration rule that weakened the law’s contraceptive mandate for employer-provided health insurance plans.

“If this rule is finalized, individuals who have health plans that would otherwise be subject to the ACA preventive services requirements but have not covered contraceptive services because of a moral or religious objection would now have access,” CMS Administrator Chiquita Brooks-LaSure said.

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The ACA guarantees coverage of women’s preventive services, such as birth control and contraceptive counseling, at no cost for women enrolled in group health plans or individual health insurance coverage. In 2018, new regulations expanded exemptions for religious beliefs and moral convictions that allow private health plans and insurers to deny coverage of contraceptive services.

The proposed rule from the departments of Health and Human Services, Labor and Treasury would remove the exemption that allows employers to opt out because of moral convictions. It also would create an independent pathway for individuals enrolled in plans offered by employers with religious exemptions to access contraceptive services through a willing provider without charge. The proposed rule would leave in place the existing religious exemption for employers with objections, as well as the optional accommodation for contraceptive coverage.

HHS estimates that the proposal would affect more than 100 employers and 125,000 workers, mainly through providing the proposed independent pathway for employees to receive no-cost contraception.

The administration said its proposal seeks “to further the government’s interest in promoting coverage for contraceptive services for all women and in eliminating barriers to access, while respecting the religious objections of employers, health insurance issuers and institutions of higher education to coverage of contraceptive services.”

The proposed rule is part of the Biden administration’s commitment to ensuring access to reproductive health care and follows earlier action to expand access to birth control and family planning services. The departments of HHS, Labor and Treasury met earlier with health insurers and called on the industry to commit to meeting their obligations to provide contraceptive coverage as required by the ACA.

The departments also issued guidance to clarify protections for birth control coverage under the ACA following multiple states’ efforts to restrict access to contraception in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. HHS also announced nearly $3 million in new funding to bolster training and technical assistance for the nationwide network of Title X family planning providers.

“Now more than ever, access to and coverage of birth control is critical as the Biden-Harris administration works to help ensure women everywhere can get the contraception they need, when they need it, and — thanks to the ACA — with no out-of-pocket cost,” HHS Secretary Xavier Becerra said. “Today’s proposed rule works to ensure that the tens of millions of women across the country who have and will benefit from the ACA will be protected. It says to women across the country, `We have your back.’”

The public will have the opportunity to comment during the next few months. Officials expect there to be many thousands of public comments, and it will be “many months” before the rule could be finalized.