The planned regulation would allow certain employers to claim a religious exemption allowing them to deny contraceptive insurance coverage to employees. While some organizations like the Little Sisters of the Poor claimed the proposal protects religious conscientious objectors, other groups have expressed concerns it will open up avenues of discrimination.
Women's rights advocates Brigitte Amiri, senior staff attorney, American Civil Liberties Union (ACLU Reproductive Freedom Project; Winnie Stachelberg, executive vice president for external affairs, Center for American Progress; Gretchen Borchelt, vice president for reproductive rights and health, National Women’s Law Center; and Dr. Raegan McDonald-Mosley, chief medical officer, Planned Parenthood Federation of America addressed the ramifications of the policy in a joint conference call hosted by the ACLU last Monday.
The ACLU threatened legal action if the rule is implemented. "The proposed regulation that was leaked … is the latest in a long line of efforts from the [President Donald] Trump administration to make it harder for millions of Americans, particularly women, to get the health care coverage they need," said Louise Melling, deputy legal director of the ACLU in a statement. "Any rule that allows employers to deny contraceptive coverage to their employees is an attempt at allowing religion to be used as a license to discriminate. We’ll see the Trump administration in court if they try to follow through on these plans.”
According to information from HHS, the proposal is in line with a "long history" of protecting religious beliefs in healthcare regulation. "These interim final rules expand exemptions for religious beliefs and moral convictions for certain entities or individuals whose health plans may otherwise be subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act," according to the proposal.
"These rules do not alter the discretion of the Health Resources and Services Administration, a component of the U.S. Department of Health and Human Services, to maintain the guideline requiring contraceptive coverage where no such objection exists."
Becket Law echoed that sentiment and has been embroiled in challenges of the initial insurance coverage mandate for years. Mark Rienzi, senior counsel at Becket and lead attorney for the Little Sisters of the Poor, argued contraceptives are widely available without the help of religious organizations.
“At long last the United States government has acknowledged that people can get contraceptives without forcing nuns to provide them. That is sensible, fair, and in keeping with the President’s promise to the Little Sisters and other religious groups serving the poor," Rienzi said. "This leaked interim rule, if issued as written, is an important first step in allowing the Little Sisters to focus on serving the poor rather than defending themselves against their own government.”
The organization also pointed out there are existing exemptions already in place for large corporations like Exxon and Visa, and government-run plans for military families and the disability community. "It’s time to bring some common sense to this regulation and protect religious groups serving those in need," reads a statement from Becket. The group added if the rule is enacted, legal action regarding challenges to earlier versions of the mandate would still be necessary.