By Jessie Hellmann - 05-31-17 14:05 PM EDT
The Trump administration is poised to make changes to ObamaCare's birth control coverage mandate by granting broad exemptions to employers that object on religious or moral grounds, a move that would impact thousands of women who currently get contraception from employer-provided insurance plans with no out-of-pocket costs.
Any changes to the mandate, which requires that insurers cover birth control with no co-payment, would be a victory for religious groups and employers that have been engaged in legal battles since the requirement took effect in 2012.
Reproductive rights groups are already threatening to sue the Trump administration if it takes any action to weaken or undo the mandate.
According to a leaked May 23 draft of the rule obtained by Vox, any employer - including colleges, universities and health insurance companies - would be allowed to seek an exemption on moral or religious grounds. Currently, only houses of worship and some companies are exempt.
"We think that's unconstitutional, both in terms of separation of church and state and discrimination against women," said Brigitte Amiri, a staff attorney with the American Civil Liberties Union's Reproductive Freedom Project.
If the rule goes into effect as drafted, "we will be bringing a lawsuit," she added.
Action from the Trump administration would likely build upon Burwell v. Hobby Lobby, in which the Supreme Court decided that "closely held" private businesses could be exempt from the mandate if it violated their religious beliefs. Churches and other houses of worship have also been exempt.
The Office of Management and Budget is currently reviewing the rule, the final step before it goes into effect. It's unclear when OMB will complete the review and if it will make any change to the current draft.
The rule will be effective as soon as it is published in the Federal Register. In most cases, public comments will be accepted after and the rule can be changed, if deemed necessary. A spokesman for OMB did not comment on the process or the rule.
Reproductive rights groups have argued that the Trump administration draft rule could jeopardize access to birth control.
"It is really sweeping. We're pretty disturbed about the vision they have here for birth control," said Mara Gandal-Powers, senior counsel at the National Women's Legal Counsel, another group that has threatened to sue over the rule.
"I think based on what has been leaked, we have very strong claims that what they've done is not allowed [under the Affordable Care Act.]"
Congress is working to repeal ObamaCare, though the bill passed by the House earlier this month wouldn't impact the birth control requirement. That means the administration will have to take separate action through rulemaking.
Changing the mandate was a Trump campaign promise, and Vice President Mike Pence and Health and Human Services Secretary Tom Price have railed against the ObamaCare provision in the past.
Trump signed an executive order earlier this month instructing HHS and other departments to "address conscience-based objections" to the mandate, which faced strong opposition from groups and employers such as the Little Sisters of the Poor, who argue it violates Roman Catholic doctrine and puts them in a position of participating in something they considered sinful.
The Supreme Court ordered the Obama administration and the Little Sisters to reach a compromise, which didn't happen before Obama left office in January.
Shortly after Trump's executive order, Price said HHS would take "action in short order to follow the president's instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees."
Conservative groups praised the proposed changes as a win for the Little Sisters and other groups.
"Making this as broad as possible for people who do want exemptions is a good thing in our book," said Melanie Israel, a research associate at The Heritage Foundation.
"I imagine there would be a great sense of relief" for employers that have wanted exemptions, she said.
Democrats promptly blasted the proposal, vowing to fight to ensure women are covered when seeking access to birth control.
"The draft rule announced today attempts to tear away women's control over their own private health decisions and put that control in the hands of employers and politicians," House Minority Leader Nancy Pelosi (D-Calif.) said in a statement.
"Every woman has the right to make her own intimate health decisions - and Democrats will never stop fighting to defend that right."