By Matthew Byron, Class of 2019

The Affordable Care Act (ACA) does not currently mandate that insurers cover contraceptives under their respective plans. However, in 2011, the Departments of Health and Human Services, Treasury, and Labor (the Departments) issued regulations requiring non-grandfathered group health plans and health insurers to cover all FDA-approved contraceptives. Under those regulations, a few entities–mainly churches and other religious organizations–were exempt from being required to cover contraceptives, so the exemptions under these regulations were very narrow.

Since the 2011 regulations were enacted, several religious organizations sued the Department of Health and Human Services to challenge paying for or providing contraceptives due to certain religious and moral objections over contraceptives. In an effort to protect the individuals and entities with sincere religious and moral objections to providing or covering contraceptives, while still keeping the contraceptive mandate intact, on November 7, 2018, the Departments announced two final rules, available at the Federal Register, that provide certain protections for American individuals and entities that have a legitimate religious or moral objection to health insurance that covers certain contraceptive methods. While these rules do not go into effect until January 14, 2019, the rules provide for two major exemptions from the contraceptive mandate requirement.

Exemptions for Religious Beliefs

The first of the two final rules establish an exemption from the contraceptive mandate for entities and organizations that have “sincerely held religious beliefs” opposed to coverage of some or all contraceptive or sterilization methods…” An otherwise exempt entity can still choose in its plan to provide for the coverage of contraceptives, but of course, this would be a voluntary choice for that entity instead of a requirement. In addition, if an otherwise exempt entity chooses to object to one particular type of contraceptive, but chooses to allow for coverage of another type of contraceptive, the entity may do so. This exemption applies not only to religious organizations, but it can be applicable to non-profit organizations, institutions of higher learning, and certain individuals, so long as those entities have a sincerely held religious objection.

Exemptions for Moral Convictions

The second of the two final rule provides an exemption from the contraceptive mandate requirement for individuals and entities that have non-religious moral convictions opposing services covered by the mandate. These exemptions can apply to nonprofit organizations and to closely held businesses, as well as to institutions of education, health insurance issuers serving exempt entities, and individuals. Like the religious beliefs exemption, otherwise exempt individuals and entities with a moral conviction may choose to voluntarily cover contraceptives to beneficiaries in their plan. One notable exception to this exemption is that this final rule does not exempt publicly-traded businesses or governmental entities. While it can be hard to establish what a valid moral conviction looks like, the Departments clarified that, under case law, a moral conviction is one (1) that a person “deeply and sincerely holds”; (2) “that are purely ethical or moral in source and content; (3) “but that nevertheless impose…a duty”; (4) and that “certainly occupy…a place parallel to that filled by…God’ in traditionally religious persons,” such that one could say the “beliefs function as a religion.”

In sum, since these two final rules are not currently in effect, it is unclear as to how many individuals and entities will try to claim the exemption, and how many beneficiaries the exemption would otherwise affect. The Departments estimate that, at most, 200 employers with religious or moral objections would be affected by these final rules, and between 6,400 and 127,000 women’s coverage would potentially be affected. Although these rules do not replace or supersede any existing contraceptive mandate requirements, they do add protection, and possibly an additional avenue for providers of health insurance with legitimate religious or moral objections to be exempt from covering contraceptive services. While at first glance it appears, based on the Departments’ numbers, that the final rules will only have a relatively small impact on contraceptive coverage, only time will tell when these rules take effect mid-January.