Bending Toward Justice: Blue states step up in wake of Trump Administration rollback of contraception mandate

The Trump Administration is coming for for your birth control if you’re a woman who works for a non-profit organization or company with a stated religious/moral objection to contraception. Or even if you’re a woman who gets her health insurance from a parent, spouse or partner who works for such an employer. Now the blue states are fighting back.

In yesterday’s column, I explained the ins and outs of a new set of Trump Administration rules that blow a hole through the contraception mandate that grew out of the Patient Protection and Affordable Care Act. In short, the ACA requires that all health insurance plans provide basic preventative health services at no cost, and that women’s and men’s preventative care be equally covered. Upon the advice of medical and public health experts, and after a lengthy public comment process, the Obama Administration issued rules that required that no-cost preventative care for women include all Food and Drug Administration-approved forms of birth control.

Houses of worship — churches, synagogues, mosques and their related entities — were exempt from the rules if they had a religious objection to paying for their employees’ birth control. Non-profit organizations and closely-held corporations with a religious objection could opt-out of the rule through an accommodation, but their employees would continue to receive no-cost birth control through a different funding mechanism.

The results were a big win for women and for public health. By some estimates, women in the U.S. had collectively saved $1.4 billion on birth control from July 2012 to July 2015 as a result of the Obama-era rules. With more expensive contraception now available to women at no cost, studies showed an increase in the use of long-acting contraception — like IUDs (intrauterine device) — and a decline in unwanted pregnancies between 2009 and 2013, as compared to the period from 2001 to 2008.

The new Trump Administration rules exponentially expanded the kinds of employers who are exempt from the contraception mandate. Now, all nonprofit organizations and closely-held corporations with a religious or moral objection to contraception, including private universities that provide student health care, and publicly-held corporations with objections based on religious beliefs, may simply refuse to provide health care plans that include no-cost contraception.

Eight states have collectively filed four different lawsuits challenging the Trump Administration’s contraception rollback. Washington, Pennsylvania, and Massachusetts filed suit in federal district court in their state. California did too, and was joined in its action by New York, Delaware, Virginia, Maryland. Like the individuals and organizations who have also sued to stop these new rules (which I discussed in yesterday’s column), the states’ actions claim that the Trump Administration didn’t follow the proper legal procedures in enacting the rules; that they conflict with the language of the ACA; that they are “arbitrary and capricious,” which simply means that they are not rationally based on the evidence before the agencies; that they discriminate against women on the basis of their sex; and that they too heavily favor religion in a way that conflicts with the Establishment Clause of the U.S. Constitution.

But the states have additional claims. Some relate to the costs they will now incur to provide low-cost or no-cost contraception to women whose employers claim the new broad religious exemption (or whose parents’, spouses’ or partners’ employers do). Others refer to the costs they will incur when unintended pregnancies inevitably begin to rise again, when some women lose access to no-cost contraception. States provide low-cost or no-cost family planning services to qualified residents through a variety of programs, including Medicaid, Title X funding, and state health department programs.

Massachusetts has gone a step further. Last week, the state legislature overwhelmingly approved a law that mandates that no-cost contraception services be provided by any health care plan regulated by state law, essentially codifying the Obama era rules. Republican Governor Charlie Baker –– who is pro-choice –– signed it into law. This state-level contraception mandate will govern employer-sponsored health care plans where the employer pays a premium to the insurance carrier, health insurance provided to public employees, and the state’s Medicaid program for the poor and disabled.

In passing this law, Massachusetts joined California, Illinois, Maine, Maryland, Nevada, New York, Oregon, and Vermont in requiring health insurance plans in those states to provide no-cost contraception services. The laws in Maine, Maryland, Nevada, and Oregon don’t go into effect until 2018 or 2019. These nine states, and 19 others, also require health care plans to include contraceptives in their prescription drug plans, so even if there’s a co-pay, women can access contraceptives at more affordable prices.

Unfortunately, employees in these states who work for companies or non-profit organizations that self-insure will continue to be covered by the Trump birth control rules, if the rules are not enjoined by a court. That’s because self-insured health care plans are governed exclusively by federal law, as set forth in the Employee Retirement Income Security Act or ERISA.

Since enactment of the ACA, medium and large employers have more moving steadily toward providing more self-insured plans. When Obama was in office, that was a good thing for employees. With Trump, just the opposite is true.