New Rule Proposed to Increase Access to Contraceptive Coverage

On January 30, 2023, the Department of Health and Human Services (HHS), the Department of Labor, and the Treasury (collectively, the “Departments”) announced a proposed rule with the intent to increase access to birth control coverage under the Affordable Care Act (ACA). Under the ACA, most plans are required to provide birth control with no out-of-pocket costs associated with those offerings.

The proposed rule would effectively eliminate key aspects of the “moral exemption” that was first implemented in 2018 during the previous administration. The moral exemption, as it is currently constituted, allows private health plans and insurers to opt-out of offering coverage that includes contraceptive services on the basis of their religious beliefs and/or moral convictions. The newly proposed rule would alter that by preserving just the religious beliefs aspect of the exemption for entities and individuals, while doing away with any objections due solely to moral convictions.

The rule would also keep in place the optional accommodations for coverage featured in the 2018 iteration of the rule, which allowed employers along with private colleges and universities to opt-out of providing birth control services while requiring insurers and TPAs to offer contraceptive coverage at no cost once notified of the objection. This will now extend out to organizations with religious exemptions as well, broadening the scope of individuals who are able to obtain contraceptive services at no additional cost. Thus, even students at religiously affiliated colleges and universities will now have access to birth control resources without charge under the expanded accommodation. The proposed rule continues the Biden administration’s varied efforts to combat the Supreme Court’s controversial 2022 decision in Dobbs v. Jackson, which overturned the constitutional right to abortion as settled in Roe v. Wade and granted individual states regulatory power over abortion laws. As a result of the Dobbs decision, the current administration has responded by widening pathways for access to birth control and contraceptive services such as counseling at no cost, with the proposed rule being an important piece of that strategy. If finalized, HHS expects the rule to affect more than 100 employers and at least 125,000 workers, as these health plans that previously objected would now need to comply based on the ACA preventative services requirement.

Ultimately, the proposed rules would carry forward the Biden administration’s mission to strengthen the ability for women to make their own reproductive decisions while also being respectful of religious organizations’ stances on contraceptive coverage.

Next Steps

Once published to the Federal Register, there will be 60 days for public comment, at which point the Departments will review and make a final decision on the proposed rule and its potential structure.

We will continue to closely monitor any developments as it pertains to this issue and will provide updates once available.

Additional Links

• CMS Press Release on Proposed Rules
• CMS Fact Sheet on Proposed Rules
• Federal Register
• Biden-Harris Administration Roe Report