Contraception as a Health Insurance Right: What Comes Next?

T he Affordable Care Act (ACA) requires both individual insurance policies and plans sold or administered in the employer group market to cover preventive health services that public health authorities deem highly effective. Under the law, preventive care and screenings for women constitute a specific preventive benefit category.1 Regulations issued by the Obama administration in consultation with the National Academy of Medicine2 interpret this category to include contraceptive methods approved by the US Food and Drug Administration (FDA). To say that this contraceptive coverage guarantee has been controversial is an understatement. Under the Trump administration, what might come next? The controversy surrounding this rule has focused on how it should be applied to employers that object to some or all contraception on religious grounds. Adhering to long-standing tradition, the rule completely exempts church-sponsored plans. Furthermore, in compliance with the Religious Freedom Restoration Act (RFRA),3 the rule also contains an “accommodation” for plans sponsored by religious organizations, that is, nonprofit organizations that claim a religious affiliation (eg, universities and hospitals) but whose employees are not insured through church plans.4 In these situations, the religious organization notifies its insurer of its objection, and the insurer provides coverage directly as an additional benefit offered outside the technical scope of the employer plan. A blizzard of lawsuits, falling into two camps, followed in the rule’s wake. The first group of lawsuits consists of challenges brought by forprofit, closely held employers that thus are not “religious organizations” covered by the accommodation. The second group is made up of religious organizations covered by the accommodation that insist that anything less than a full exemption amounts to a “hijacking” of their plans