Employment Law Daily New regs provide opportunity for ‘moral’ objection to contraceptive coverage, draw lawsuit
Friday, October 6, 2017

New regs provide opportunity for ‘moral’ objection to contraceptive coverage, draw lawsuit

By Kayla R. Bryant, J.D. and Pamela Wolf, J.D.

Two new HHS interim final rules, effective October 6, 2017, have sliced through the Patient Protection and Affordable Care Act’s (ACA) contraception mandate by providing additional exemptions for objecting employers and insurers. In addition to religious organizations objecting on grounds of religious beliefs, non-religious groups may now decline to cover contraceptives based on “sincerely held moral convictions.” The Health Resources & Services Administration (HRSA) retains discretion to continue to require coverage where no regulatory objections apply. The new regulations have already drawn at least one lawsuit.

Exemption. The rules create 45 C.F.R. sec 147.133, expanding the exemption previously located at sec 147.131(a). The expanded exemption applies to group health plans, issuers, and sponsors, which will not face penalties after omitting contraceptive coverage from benefits to the extent the plan sponsor objects to such coverage. Issuers do not need to have their own objections to be exempt from penalties. The exemption applies to plan sponsors for for-profit entities with no publicly traded ownership interests.

Accommodation. Although the administration does not believe that any entities holding moral convictions will seek to use the optional accommodation process available for religious organizations, the rule has inserted references to the new exemption for moral convictions into regulations where the accommodation process is codified. The expansion of accommodation eligibility is intended to provide an opportunity for entities objecting on moral grounds to provide contraceptive coverage.

The rules will publish in the Federal Register on October 13, 2017, but are effective immediately.

One lawsuit already. In the meantime, the American Civil Liberties Union said that it is filing a lawsuit October 6 against the Trump administration challenging the interim final rules. The suit is brought on behalf of members of the ACLU and Service Employee International Union-United Health Care Workers West (SEIU-UHW) who are at risk of losing their contraception coverage because of where they work or where they go to school.

According to the ACLU, the interim rules violate the Establishment Clause and the Equal Protection Clause of the Constitution by authorizing and promoting religiously motivated and other discrimination against women seeking reproductive health care.

“The Trump Administration is forcing women to pay for their boss’s religious beliefs,” said ACLU senior staff attorney Brigitte Amiri. “We’re filing this lawsuit because the federal government cannot authorize discrimination against women in the name of religion or otherwise.”

“With the stroke of a pen, the Trump administration has shamelessly attempted to rip away the rights of untold numbers of women to receive essential healthcare, under the warped facade of ‘religious freedom,’” said SEIU-UHW President  Dave Regan. “Apparently, ‘religious freedom’ to this administration is the freedom to allow bosses to make medical decisions for and discriminate against female employees. Women in the workplace need compassionate care, not doors slammed in their faces by their employers.”

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