WASHINGTON — One of President Trump’s first acts Friday was a broad executive order urging his administration to loosen the Affordable Care Act’s regulations — and one of its casualties could be the law’s so-called contraception mandate.
Much will depend on how the Department of Health and Human Services interprets Trump’s orders. The first order itself does not mandate any specific actions.
But the contraception mandate would be an obvious target. It is widely loathed by conservatives, who allege it encroaches on religious freedoms, and the Obama administration enacted it through the broad regulatory authority that the law granted to HHS. It is not etched into law by the ACA itself.
“There’s no statutory requirement to cover contraceptives. The requirement is to cover preventive services for women,” said Tim Jost, a Washington and Lee health law professor who is generally supportive of the ACA.
The Obama administration interpreted preventive services for women to include all Food and Drug Administration-approved forms of contraception. The Trump administration could interpret it differently, though they would have to go through the lengthy rule-making process to change the requirement.
“They’d have to do it by regulation, but they could change that,” Jost said.
Generally, health law experts see Trump’s order as the opening salvo in a war against the health care law. Much of the ACA’s new rules and requirements were broadly defined in the law itself, which then left the specifics to the discretion of HHS. The department, under Obama, fixed the actual policies into place through regulations.
Trump’s order signals that the new administration plans to use that same discretion to start rolling back many of the law’s provisions — and among them could be the requirement to cover all forms of contraceptives.
“What this means in practice will play out over the coming weeks and months,” said Larry Levitt, senior vice president at the nonpartisan Kaiser Family Foundation. “This seems to send a clear signal that regulations should be scaled back, which could very well effect what benefits insurers are required to provide, including contraceptives.”
The Trump administration could also grant more and more exemptions to businesses and organizations that claim a religious objection to covering contraception for their employees. The federal government is currently locked in a number of lawsuits with groups making those claims. Officials at HHS could quickly settle those lawsuits, under Trump’s executive order.
“I think they could just say anybody who has a religious problem doesn’t have to cover contraception,” Jost said.
The person overseeing the regulatory rollback of the ACA, assuming he is confirmed by the Senate, would be Congressman Tom Price, Trump’s pick to be HHS secretary, who has a history of opposing the contraception mandate.
After his nomination to lead the agency, Democrats and reporters surfaced Price’s 2012 comments in which he appeared to dismiss the importance of the mandate.
“Bring me one woman who has been left behind. Bring me one. There’s not one,” Price said at the time. “The fact of the matter is this is a trampling on religious freedom and religious liberty in this country.”
Senator Patty Murray of Washington, a Democrat on the health committee that Price appeared before last week, challenged him on that statement during the hearing. Price responded he meant “that when I had patients in my office who were unable to afford medication, we did everything we could to make certain that they got that medication.”
Murray then pressed him to commit to maintaining the contraception coverage requirements if he is confirmed to run HHS.
“Will you commit to ensuring all 18 FDA-approved methods of contraception continue to be covered so that women do not have to go back to paying extra costs for birth control?” she asked.
Price remained noncommittal.
“What I will commit to and assure is that women — and all Americans need to know — that we believe strongly that every single American ought to have access to the kind of coverage and care that they desire and want,” Price said. “That’s our commitment and that runs across the board.”