Update: After this blog was published, NWLC and its partners challenged these discriminatory final rules, which are just as unlawful and unconstitutional as the interim rules were. 

The day after the mid-term elections, the Trump-Pence Administration ramped up its assault on women’s health. In addition to attacking insurance coverage of abortion and the Title X family planning program, the Administration finalized two rules that would gut the Affordable Care Act’s birth control benefit, which requires health plans to cover all FDA-approved birth control methods for women without out-of-pocket cost. If the final rules go into effect as the Trump-Pence Administration would like them to on January 14, 2019, they will allow virtually any employer or university claiming a religious or moral exemption to deny insurance coverage of birth control to their employees and students. NWLC is suing the Trump-Pence Administration and supporting legal challenges by several states to stop these dangerous rules from going into effect.

If these final rules sound familiar, that is because they are very similar to interim rules that the Trump-Pence Administration issued about a year ago, in October 2017. Several states and advocacy groups, including the National Women’s Law Center, brought lawsuits to challenge the legality of the interim rules, and they were blocked by two federal courts in December 2017. By issuing these new final rules, the Trump-Pence Administration is attempting to get around these court orders—just in time for open enrollment and health plan years starting in early 2019.

Like before, there are two rules: a religious exemption rule and a “moral” exemption rule. As a federal court in Pennsylvania explained when blocking the interim version of the rules, these exemptions are so broad that they are the “proverbial exception that swallows the rule.” As another federal court in California explained, for many women nationwide, the rules transform the ACA birth control benefit from a “legal entitlement to an essentially gratuitous benefit wholly subject to their employer’s discretion.” The final rules are just as broad and harmful (and shady) as the interim rules.

The religious exemption rule allows any non-governmental university or employer claiming a religious objection to deny insurance coverage of birth control to students and employees, including even publicly traded corporations owned by thousands of different shareholders. This religious exemption could affect tens or hundreds of thousands of employees, and outrageously suggests that large and diverse publicly traded corporations can have religious beliefs.

The moral exemption rule allows any non-governmental university or employer except publicly traded corporations to deny insurance coverage of birth control to students and employees if they have a “moral” objection. As the federal court in Pennsylvania explained about the interim version of the rules, this could mean that an employer that believes women don’t belong in the workplace can use this rule to deny insurance coverage of birth control to their employees.

The final rules rely on anti-science, anti-woman claims that misstate the effectiveness and safety of birth control. And by creating cost and other barriers to accessing birth control, the final rules will particularly hurt women of color, LGBTQ people, young people, and others who already face systemic barriers to accessing reproductive health care.

The final rules are also illegal, just like the interim rules, and NWLC will continue to fight them in court. They violate the ACA, they discriminate against women, they infringe our fundamental right to use birth control, and they violate basic principles of separation of church and state.

The Trump-Pence administration knows just how beneficial and popular the ACA birth control benefit is, which is why they waited until the day after the elections to attack it.  Since the ACA birth control benefit went into effect, 62.8 million women have coverage of birth control without out-of-pocket costs, and more women than ever before have been able to use the birth control method of their choice. Birth control is critical to women’s health, equality, and economic security. If the Trump-Pence Administration wants to mess with our birth control coverage, our message to them is: We’ll keep seeing you in court.

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