Will Free Birth Control Disappear Under President Trump?

Leaked Draft Regulation Would Provide Broad Exemption From Contraceptive Mandate

Various Birth Control Methods
How could insurance coverage for contraception change under the Trump Administration?. BSIP/UIG / Getty Images

Now that President Trump is in the Oval Office, woman are wondering whether insurance coverage for contraceptives is going to disappear, and whether they should get an IUD in the near future, in case they revert to costing several hundred dollars under his administration.

And based on a leaked HHS/IRS regulation draft obtained by Vox, those concerns are certainly valid. 

So let's take a look at the ACA's contraceptive mandate, the impact it's had, and what we can reasonably expect going forward.

Contraceptives Under the ACA

One of the more controversial provisions of the Affordable Care Act (Obamacare) is contraceptive coverage. Under the ACA, all non-grandfathered health plans must cover—with no cost-sharingat least one version of each of the 18 different types of FDA-approved female contraceptives (it's notable that grandfathered plans still make up a substantial percentage of employer-sponsored plans; according to the leaked draft regulation, 36.5 million people with employer-sponsored coverage are on grandfathered plans, which are not required to offer contraception without cost-sharing).

Although many of the ACA's provisions didn't take effect until 2014, the requirement that plans cover contraceptives has been in place since August 2012, for all new and renewing plans. For non-grandfathered plans that renewed after that point, contraceptive coverage was added at the first renewal.

So by August 2013, all non-grandfathered plans included contraceptive coverage. An exception was granted for religious institutions, however, and expanded in 2014 (as a result of the Supreme Court ruling in Burwell v. Hobby Lobby) to include "closely-held" organizations whose owners have religious objections to the contraceptive mandate.

 

2015 Health Affairs study found that the ACA's contraceptive mandate was saving the average oral contraceptive user $255 per year, and the average IUD user $248 per year (without the ACA's contraceptive mandate, IUDs typically cost $500 to $1,000. Pre-ACA, this had to be paid up-front, but the savings are calculated on an annual basis, spread out over the years the woman has the device).

Under the ACA, insured women with non-grandfathered coverage don't have to pay anything at the time they get their birth control, assuming they opt for the contraceptives that their health insurers cover in full (the ACA requires health plans to cover at least one of each type; it does not require them to cover all versions of each type).

Although this is often referred to as "free" birth control, critics note that nothing is free. In reality, the cost of contraception is wrapped into the premiums that women and their employers pay for coverage. So for the sake of clarity, the discussion around free birth control in this article is referring to birth control that's provided with no cost-sharing at the time it's obtained.

Expanded Access to Contraception Reduces Abortions & Teen Birthrate

In November 2016, the CDC published data showing that by 2013, abortion rates were at an all-time low in the U.S.

Abortion opponents note that this could also be due to the plethora of laws that have been passed in various states to limit access to abortions in recent years. But evidence from Colorado—which is not among the states that have passed laws restricting access to abortions—indicates that access to contraceptives is indeed playing a key role: The Colorado Family Planning Initiative began providing long-acting reversible contraceptives (IUDs and implants) to teens and low-income women in 2009, prior to the ACA's enactment. By 2014, the teen birth and abortion rates had dropped by 48 percent.

IUDs and Implants Gain Popularity Under ACA Rules

The CDC also reports that highly effective long-acting reversible contraceptive (LARC) use is at an all-time high among American women.

This is likely due to a combination of better education about LARC and the fact that the ACA took away the affordability barrier that sometimes prevented women from obtaining LARC prior the implementation of the ACA's requirements.

Will GOP-Controlled Congress Eliminate Fully-Covered Birth Control?

We don't yet know the full extent of what President Trump and the Republican-controlled Congress will do in terms of healthcare reform. House Republicans passed the American Health Care Act (AHCA) in May 2017, but it faces an uncertain future in the Senate.

The House version of the AHCA does not eliminate the ACA's preventive coverage mandate, but it does allow (via the MacArthur Amendment) states to seek waivers in order to redefine essential health benefits beginning in 2020. Preventive care, which includes contraception, is one of the ACA's essential health benefits. If a state were to obtain a waiver that redefines essential health benefits, contraceptive coverage could theoretically no longer be required. 

The AHCA would also end federal funding for Planned Parenthood for one year, reducing access to contraception among women who rely on Planned Parenthood for their care.

Will Trump Administration Eliminate Fully-Covered Birth Control?

Former Representative Tom Price (R, Georgia) was confirmed by the Senate in February 2017 to be Secretary of Health and Human Services. In a 2012 interview with ThinkProgress, Rep. Price said that there is "not one" woman in the U.S. who couldn't afford contraception, in response to a question about what would happen—particularly for low-income women—if the ACA's contraceptive mandate was repealed.

Rep. Price went on to say that the ACA's contraceptive mandate was "trampling on religious freedom and religious liberty in this country."

Price could change or eliminate the ACA's contraceptive coverage mandate by changing the regulations that define preventive care, since those guidelines were created by HHS, rather than defined in the ACA itself. Under the current regulations, which were developed in 2011, preventive care for women includes the full range of FDA-approved contraceptives. But those regulations might be subject to change under a Trump Administration HHS led by Tom Price.

HHS can also issue new regulations that maintain the contraceptive mandate but allow greater latitude in terms of exemptions, which appears to be the direction they are heading.

What's in the Leaked Regulations?

On May 4, 2017—the same day House Republicans passed the AHCA—President Trump Issued an executive order that directs the Secretaries of the Treasury, Labor, and HHS, to  "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate." This set the stage for new regulations, which, according to the New York Times, the Trump Administration was considering in late May.

On May 31, Vox obtained a leaked draft of a new HHS and IRS regulation, which would substantially undermine the current contraceptive mandate. It's dated a week earlier, and we don't yet know whether this draft is in its final version, or if changes will be made before it becomes official.

If the leaked version of the regulation is finalized and printed in the Federal Register, it would take effect immediately, without the usual notice and comment period. Comments would still be accepted for 60 days, but the regulation would already be in effect, and it's unlikely that it would be changed at that point in response to comments. HHS normally accepts public comments on proposed regulations, considers them, and explains how the public comments shaped the final regulation. But in this case, they're saing that they don't need to go through that process again, since they already got public comment on the contraceptive mandate issue when regulations were published in previous years. It's worth noting, however, that this regulation is vastly more far-reaching than the contraceptive mandate exemptions that HHS previously promulgated, and that comments would likely be quite different as well

Under the May 23 version of the regulation, any employer, university, or health insurer would be able to invoke an exemption from the contraceptive mandate, with any religious or moral grounds as the justification for the exemption. The exemption would not have to be approved by the government—employers that don't wish to cover contraception in their group health plans would simply have to notify their employees of the change in benefits.

The draft explains that "Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market." But advocates for universally available contraception note that the impact of the regulation will be that fewer women have realistic access to contraceptives, particularly long-acting reversible contraceptives (IUDs and implants) that tend to have high up-front costs if they're not covered by health insurance.

The ACLU has promised to ​"see the Trump administration in court if they try to follow through on these plans."

To be clear, the Obama Administration already took steps to ensure that religious employers didn't have to directly pay for contraceptive benefits, but the workaround still ensures that women covered by those employers' health plans continue to have access to no-cost contraceptive coverage (that isn't always uniformly enforced, however, and some women with religious employers do not have access to no-cost contraceptives through their employer-sponsored health plan). But this is a solution that some religious employers believe is still infringing on their religious liberties.  

What Happens If the Contraceptive Mandate Is Repealed?

If lawmakers and/or HHS fully eliminate the ACA's contraceptive mandate, we would essentially return to the way contraceptive coverage worked prior to 2012. Birth control would still be available, but not required to be fully funded by private health insurance or Medicaid.

Some women would still have access to very robust health insurance with solid coverage of a wide range of contraceptives, but other women would have skimpier coverage. We would be back to a patchwork system of varying contraceptive coverage depending on where a woman lives and what type of health plan she has.

And although Rep. Price claimed in 2012 that "not one" woman was unable to afford contraceptives prior to the ACA's mandate, a 2010 survey conducted by Planned Parenthood found that 34 percent of women had "struggled with the cost of prescription birth control at some point in their lives."

In 2012, Georgetown University law student, Sandra Fluke, testified before a congressional panel regarding contraceptive coverage under the ACA. She testified that 40 percent of female Georgetown University law students reported that the university health plan's lack of coverage for contraceptives had caused them to struggle financially.

A return to cost sharing for contraceptives might not present much of a problem for women with incomes that put them in at least the middle class. But it could present a significant problem for lower-income women. And access to highly effective IUDs and implants could be dramatically impacted if their significant up-front costs cease to be fully covered by health insurance.

Sources:

Center for Disease Control and Prevention, Abortion Surveillance—United States, 2013. November 25, 2016.

Center for Disease Control and Prevention, National Center for Health Statistics. Trends in Long-acting Reversible Contraception Use Among U.S. Women Aged 15–44. February 2015.

Colorado Department of Public Health & Environment, Colorado's Teen Birth Rate Continues to Plummet. October 21, 2016.

Department of Health and Human Services, Health Resources and Services Administration, Updating the Women's Preventive Services' Guidelines, 2011.

HealthAffairs. Women Saw Large Decrease in Out-of-Pocket Spending for Contraceptives After ACA Mandate Removed Cost Sharing. Vol 34, No 7, July 2015.

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