Employers Gain Religious Exemption From Providing Contraceptive Benefits

Author: Robert S. Teachout, XpertHR Legal Editor

October 11, 2017

More employers with religious or moral objections to providing birth control may be granted an exemption from Affordable Care Act regulations requiring them to provide coverage after the Trump administration moved to greatly expand employers' rights in this area. The Department of Health and Human Services (HHS) will publish two interim final rules in the Federal Register on October 13, 2017, that will loosen the restrictions on religious exemptions put in place by the Obama administration.

The ACA requires employer-sponsored group health plans and health insurers to provide certain preventive services to employees at no cost. Rules issued by HHS during the Obama administration required employer-provided health insurance plans to cover all FDA-approved contraception, as well as sterilization procedures.

However, it allowed religious nonprofits to opt out of providing contraceptive coverage directly by sending a form to the plan's health insurer or third-party administrator. The nonprofits claimed the requirement places a substantial burden on their sincerely held religious beliefs by allowing health insurers to provide these services to their employees or students, making them complicit in providing services they believe to be immoral.

Under the Trump administration's first revised rule, the exemption will be available to nonprofit organizations and for-profit companies that hold sincerely-held religious beliefs against providing contraceptive benefits, and to health plans provided to students at religiously-affiliated colleges. The second interim rule allows an exemption to be granted to privately-held companies and organizations that have moral objections to birth control.

HHS also is eliminating the requirement that exempted organizations submit a form requesting that a third party provide birth control in their stead. Some organizations had sued to block the requirement, but the Supreme Court sidestepped resolving the issue in Zubik v. Burwell in 2016 while it only had eight members. Instead, the Court sent the case back to the lower courts to arrive at an approach that accommodates the challengers' religious rights while at the same time ensuring that women covered by these health plans "receive full and equal health coverage, including contraceptive coverage."

Critics claim that the new HHS rules could potentially result in hundreds of thousands of female employees losing their birth control coverage benefits. Within two hours of the HHS announcement, The American Civil Liberties Union (ACLU) filed a lawsuit charging that the rules violate the Establishment Clause and Equal Protection Clause of the Constitution.