By Gregory Curfman
Within the coming months, the constitutional right to abortion, which has been in place for nearly 50 years, is likely to be overturned.
In this light, it is more crucial than ever that women have unfettered access to contraception at no charge. Accordingly, the Biden Administration should act now to return the Affordable Care Act’s (ACA) contraceptive coverage mandate to its status originally intended by Congress in 2010.
The mandate stipulated that employers were required to provide coverage of FDA-approved contraceptives for their female employees without cost-sharing. This contraceptive mandate was subject to some religious exemptions (such as houses of worship) and accommodations (religious employers, such as universities, who certified that they met certain criteria).
Since it was passed into law in March 2010, however, the contraceptive coverage mandate has been embroiled in controversy, including three trips to the Supreme Court.
As matters now stand, there is essentially no enforceable contraceptive coverage requirement, and depending on their employer’s religious and moral beliefs, women may not have cost-free access to contraceptive agents.
The mandate was first challenged in the Supreme Court in the 2014 case, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682. The outcome of this litigation was that, based on the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4, closely held, for-profit companies, such as Hobby Lobby Stores, were not required to provide their employees with contraceptive coverage. Instead, they were provided with an accommodation.
In Zubik v. Burwell 578 U.S.___(2016), the Supreme Court addressed a RFRA challenge to the self-certification accommodation process for nonprofit religious employers, but remanded the case back to the lower courts to seek a resolution without deciding the RFRA challenge. A resolution has thus far, however, not been forthcoming.
In 2018, the Trump Administration issued regulations providing an expansive exemption to the contraceptive coverage requirement for employers—based on their religious and moral beliefs. Implementation of the regulation was blocked by a nationwide injunction, but the injunction was the subject of an appeal, which was heard before the Supreme Court in two consolidated cases, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania, 591 U.S.___(2020).
In a 7-to-2 opinion written by Justice Clarence Thomas, the Court upheld the Trump regulations. The Court ruled that the regulations complied with the procedural requirements of the Administration Procedure Act and that the responsible agency, the Health Resources and Services Administration, had the proper authority to issue the employer exemptions. It is noteworthy, however, that the Court stopped short of deciding that the Trump regulations were required by RFRA, as had been argued by the Little Sisters.
In effect, the Trump regulations eliminated the contraceptive coverage mandate, instead turning it into a voluntary coverage option for employers, and in turn the Supreme Court sanctioned the regulations.
The Biden Administration has signaled that it will work to rescind the Trump regulations on the contraceptive coverage mandate, and in the absence of a Supreme Court ruling on whether RFRA requires the Trump regulations, President Biden has the legal room to move on recission of the regulations. Thus far, however, the President has inexplicably failed to act.
Now, time is running out. Within just a few months, it is highly likely that women’s constitutional right to choose an abortion will be overturned by the Supreme Court in Dobbs v. Jackson Women’s Health Organization. Women not wanting to become pregnant will be more reliant than ever on highly effective, cost-free contraception. It is imperative that the Biden Administration now take the initiative to revoke the Trump regulations.
As has been pointed out, should Biden rescind the regulations, the Little Sisters may challenge the recission with the argument that RFRA requires the regulations. Were this to happen, it is possible that we may see the contraceptive coverage mandate back in the Supreme Court.
In the meantime, the President should proceed to reverse the Trump regulations and be prepared to argue against a possible RFRA challenge. With the prospect looming that women will soon no longer have a constitutional right to abortion, the Administration needs to do everything possible to aid women in preventing pregnancies they do not wish to have.
Gregory Curfman, M.D. is the Senior Advisor and Physician Scholar in Residence for the Solomon Center for Health Law and Policy at Yale Law School. He is also the Deputy Editor of JAMA.
