Biden Administration Aims to Expand ACA's Birth Control Coverage

Author: David B. Weisenfeld, XpertHR Legal Editor

January 31, 2023

New rules proposed by the Biden administration would make it more difficult for employer-provided health insurance plans to deny women access to contraceptives under the Affordable Care Act (ACA).

The proposed rules, announced yesterday by the Departments of Health and Human Services (HHS), Labor and Treasury, would reverse Trump-era rules that had weakened the law's contraceptive mandate for employer-provided health insurance plans.

The ACA guarantees coverage of women's preventive services, including birth control and contraceptive counseling, at no cost for women who are enrolled in group health plans or individual health insurance coverage.

The Trump administration's rules exempted entities with "sincerely held religious beliefs" against providing contraceptives from being required to do so. They also provided protections to organizations and small businesses that had objections on the basis of moral convictions, even if they were not based on any particular religious belief. In a 2020 ruling, the Supreme Court upheld the administration's authority to allow employers to deny contraception coverage.

The Biden administration's new proposed rules would remove the moral exemption for employers but retain the existing religious exemption. They also would create an independent pathway for individuals enrolled in plans offered by employers with religious exemptions to access birth control services directly through a willing provider at no cost.

"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," said HHS Secretary Xavier Becerra in a statement. "It says to women across the country, we have your back." HHS estimates the proposal will affect more than 125,000 workers.

The rule is still a long way from reality as a public comment period awaits and it could be many months before it is finalized. But the Supreme Court's decision in Dobbs has placed renewed importance on the issue of access to contraceptive services across the nation.