On April 3, 2023, TCF health care policy fellow Thomas Waldrop submitted the following public comment to the U.S. Department of Health and Human Services (HHS) in response to their notice of proposed rulemaking (NPRM), “Coverage of Certain Preventive Services Under the Affordable Care Act” (file code CMS-9903-P). In his comment, Waldrop highlights how this new arrangement will balance ensuring patient access to contraceptives with employers’ religious rights.
I am pleased to provide comments to the Centers for Medicare and Medicaid Services’ request for public input on the notice of proposed rulemaking (NPRM), “Coverage of Certain Preventive Services Under the Affordable Care Act,” file code CMS-9903-P, on behalf of The Century Foundation.
My name is Thomas Waldrop and I serve as a health care policy fellow at The Century Foundation, a progressive independent think tank. The Century Foundation works to build on the Affordable Care Act (ACA) and develop the next generation of health reform to achieve high-quality, affordable, and universal coverage in America. The team also works on issues related to reproductive rights and justice, maternal health equity, reducing the structural barriers to access to health care, racial and gender disparities in health outcomes, and the intersections between health care and economic justice.
The proposed rule would create a new contraceptive coverage pathway for patients whose employers have a religious objection to covering contraceptives. The rule continues other Biden administration efforts to ensure that religious freedom is not weaponized against patients’ right to care.
Access to reproductive rights, including contraception, is under attack.
Access to reproductive health care has been a target by anti-abortion conservatives for decades, and those attacks reached a new low in Dobbs v. Jackson Women’s Health Organization, when the Supreme Court overturned the federal right to an abortion established by Roe v. Wade. As states across the country move to ban abortion care, some are going further and attempting to ban contraceptives as well. Reproductive autonomy, including access to contraception, is essential to health and economic well-being.
Under the ACA, most health insurance plans are required to cover at least one form of every method of contraception approved by the Food and Drug Administration (FDA). Importantly, these plans are required to cover these methods without any cost-sharing, which can significantly improve access, especially among lower-income people. Despite this mandate, contraceptive access in the United States is inconsistent and has been undermined since the ACA’s implementation.
Despite this mandate, contraceptive access in the United States is inconsistent and has been undermined since the ACA’s implementation.
Two recent court cases, Burwell v. Hobby Lobby Stores and Zubik v. Burwell, addressed the constitutionality of the ACA’s mandate. In the Hobby Lobby case, the Supreme Court held that the ACA’s religious exemption to providing coverage for nonprofit entities should apply to for-profit companies as well. In Zubik v. Burwell, the court system evaluated whether the existing exemptions for religious exemptions were a substantial burden on religious expression; the case was remanded to lower courts.
As a result of these cases, religious employers—both nonprofit and for-profit—are able to object to providing coverage for contraceptives to their employees. This approach is morally wrong and deeply unpopular: patient access to health care services should not be dependent on their employers’ views, and more than 90 percent of the U.S. population believe contraceptives should be free and widely available in light of the Dobbs decision.
The proposed rule would improve access to contraceptive coverage
The rule proposed by the Biden administration would make significant progress in addressing this patchwork of coverage. Under current regulations, an employee whose employer objects to covering contraceptives has no alternative method of obtaining such coverage. Even worse, there is no obligation for employers to inform their employees of their objection, potentially saddling patients with hundreds of dollars’ worth of unexpected out-of-pocket costs. These costs create a significant barrier to access, and they result in patients being unable to access the method of contraceptive of their choice.
Rather than continuing this existing setup, the proposed regulation would enable many employees to access contraceptive coverage regardless of employer objection. Under this new coverage pathway, providers would be able to seek reimbursement from a health insurer operating on the state’s health insurance marketplace, even if that insurer is not the employee’s primary source of coverage.
In order to adjust for the increased expenses, insurers would be able to request a user fee adjustment from the Department of Health and Human Services. These fees are charged to health insurers operating on the federal marketplace to fund its operation, and allowing insurers to request an adjustment will ensure that they are incentivized to provide contraceptive coverage under this new pathway without a legislative requirement that they do so.
It is important to note, however, that this new coverage pathway is only available through insurers in states that use the federally facilitated exchange, or state exchange on the federal platform. While most states (thirty-three) use one of these two approaches, more than 4 million people live in the remaining seventeen states and the District of Columbia. The proposed regulation allows for providers in these states to contract with out-of-state insurers, but these providers may be unaware of this provision or lack experience working with those insurers. The Biden administration should work closely with providers in these states to promote awareness and engagement with this new pathway.
This proposed regulation explicitly clarifies that this new pathway does not involve the employers in any way, ensuring that employers who maintain a religious objection to contraceptive care have no method of undermining this coverage.
In addition to creating the new coverage pathway, this proposed regulation explicitly clarifies that this new pathway does not involve the employers in any way, ensuring that employers who maintain a religious objection to contraceptive care have no method of undermining this coverage. The proposed regulation also eliminates the moral objection to providing contraceptive coverage, eliminating additional avenues for objection not required by court rulings.
Contraceptive access should not depend on employers.
This proposed rule is part of the Biden administration’s continued efforts to ensure that religious freedom isn’t weaponized to deny patients access to care. As the administration notes, significant racial disparities exist in contraceptive access, and this rule would make meaningful progress toward eliminating them.
The Biden administration should work quickly to finalize this rule to ensure that women and people who can become pregnant with religious employers can access contraceptives as quickly as possible. Carefully, but expeditiously, enacting this rule will ensure that as many patients can access their needed contraceptive care, regardless of where they live or work.