Published On: Fri, Aug 11th, 2017

Most companies getting Obamacare birth control waivers aren’t religious groups

Forty-five companies have received exemptions from the Affordable Care Act’s birth control mandate, new public documents show, and most of them aren’t religious nonprofits.

The majority of companies that have received permission not to cover contraceptives are for-profit, secular employers. These businesses include a lumber company in Pennsylvania, a Georgia-based construction firm, and an apartment rental company in Tampa, Florida.

The Affordable Care Act requires nearly all employers to offer health insurance that covers access to a wide array of contraceptive methods. Religious houses of worship are exempted from the mandate entirely, and certain employers can apply for exemptions. This includes religiously affiliated charities and hospitals and “closely held” private businesses that believe paying for contraceptives would violate their religious or moral beliefs.

The Trump administration has privately circulated regulations that would expand this exemption significantly. Women’s health advocacy groups expect the White House to release a public version of that regulation later this month.

Data on the companies receiving exemptions from the Affordable Care Act’s birth control mandate was obtained with a Freedom of Information Act request and provided to Vox by the Center for American Progress, a liberal think tank.

It shows that many of the employers seeking these waivers are not religiously affiliated. Of the 45 companies that have applied for and received exemptions so far, 24 were for-profit corporations, 12 were religiously affiliated nonprofits, and nine were religiously affiliated education institutions.

Obamacare requires nearly all insurance plans to cover birth control — a provision protested by religious employers

The birth control mandate is one of eight women’s preventive health benefits that the Affordable Care Act requires health plans to provide without any cost to the patient. Other required benefits include breastfeeding equipment, HPV testing, and domestic violence screenings.

Obamacare directed the Institute of Medicine, an independent, congressionally chartered body, to define what medical services should be included as women’s preventive health benefits. The health care law did not include a specific list of services.

The IOM’s decision to include birth control as a preventive benefit set off a fierce political fight, with religious business owners, hospitals, and universities protesting the requirement to cover particular types of contraceptives, particularly intrauterine devices and emergency contraceptives.

Religious houses of worship were the only employers exempted from the mandate entirely. The Obama White House gave some relief to religiously affiliated hospitals and universities. The Supreme Court expanded the scope of that relief in Burwell v. Hobby Lobby, ruling 5-4 that it would allow “closely held” private businesses to also exclude birth control from their insurance plans if coverage would violate their religious beliefs.

The companies represented in this FOIA request data are those that have applied for these types of exemptions between January 2014 and March 2016.

The list includes some of the plaintiffs that have challenged the birth control mandate in court, like Conestoga Wood Specialties, a cabinetry-making company in Pennsylvania that sued the government over the birth control mandate in 2014.

But it also includes other companies from across the country and in different industries. Firms that specialize in human resources, industrial machinery, and wholesale trade have all applied for and received exemptions.

The Trump administration has mulled broadening the exemptions to a wider group of employers

The Trump administration has weighed expanding the exemption to allow any employer to request an exemption based on moral or religious objections.

In May, Dylan Scott and I obtained a draft copy of a regulation that would widen the exemption to apply to any company — from a small, family-owned businesses to large, publicly traded corporations. These employers could cite any religious or moral reason for their exemption.

The regulation still has not been released publicly, although women’s health advocacy groups are expecting the administration to propose it later this month.

In the draft, the Trump administration cited protecting religious liberty as well as the situation left unresolved by the Obama administration as reasons for issuing this new regulation with a wider exemption.

“Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market,” the administration stated in the rule, explaining its decision.

Employers seeking an exemption would not be required to notify the government, under the draft rule, though they would have to make clear in their health plan documents that they do not cover contraception and would be required to notify their employees of any change in benefits.

The rule, as drafted, would also allow health insurers to refuse to cover contraception for religious or moral reasons, though the administration noted it was not aware of any health insurers that have those objections. It would also allow individuals to object to participating in a health plan that covers birth control.

As the Trump administration itself notes, workers whose employers request an exemption from the mandate are no longer entitled to free birth control. They would potentially have to cover the cost themselves.

The Center for American Progress argues that the current pattern of exemptions suggests that if the Trump administration enacted this rule, it would lead to many larger secular firms seeking exemptions and placing a greater financial burden on women.

“Largely, the requests have been filed by for-profit companies,” said Jamila Taylor, a senior fellow at CAP, “suggesting that Trump’s new rule will open up the floodgates for nearly anyone to force women to either pay out of pocket or navigate hurdles to obtaining additional coverage for contraception — the most effective types of which can be over $1,000 out of pocket — and simply chalk it up to moral opposition.”

More than 20 percent of US woman of childbearing age had to pay out of pocket for oral contraceptives prior to the Obamacare mandate, according to the Kaiser Family Foundation. That shrank to less than 4 percent a few years after the mandate took effect.

If employers seek an immediate exemption from the mandate, they would be required to send a notice to their employees. If they instead choose to make the change at the start of their next plan year, employees would be notified through the usual summary of benefit changes that plans are required to provide.