Fresh off the Hill: New Exemptions Under the ACA’s Contraception Mandate

The Trump Administration just announced it will be expanding the holding from the 2014 landmark case Burwell v. Hobby Lobby. You may remember from the news this case where the owners of Hobby Lobby claimed a religious objection to the ACA mandate requiring employers to cover certain contraceptives for their female employees. The holding from that decision was limited to closely held for-profit corporations.

The decision from Burwell can now be relied on by all employers, according to the U.S. Department of Health and Human Services (“HHS”). Earlier today, October 6, 2017, the Trump Administration announced that any employers citing religious or moral objections to covering birth control for their employees may claim an exemption from the ACA’s contraception mandate. According to HHS, to claim an exemption, corporations will either have to have a “sincerely held religious belief” or a “moral conviction [that] is not based in any particular religious belief.” We have no instruction yet about how a “sincerely held religious belief” or “moral conviction not based in any particular religious belief” will be established or tested under the expanded exemptions. We also have no information about when the new regulations will come into effect.

HHS has no estimate about how many entities may claim exemptions going forward. One prediction is that only about 200 entities may claim an exemption, but this figure is likely based on the number of businesses that actually filed lawsuits objecting to the contraception mandate. Another unsubstantiated statistic is that “99.9% of women” whose employers are required to provide coverage under the ACA will not be affected by these new regulations.

Details about these two new regulations will hopefully be provided in the near future. Of particular interest will be any information related to the burden placed on corporations to prove they are entitled to an exemption under the ACA’s mandate. Stay tuned.

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