In a 7-2 decision, the U.S Supreme Court upheld a Trump administration rule allowing employers to opt out of providing contraceptive coverage in their group health plans on moral or religious grounds. This rule, most recently issued in November 2018, expanded the types of employers who can claim this exemption, including for the first time, publicly traded companies and employers who opt-out on general moral grounds.
Justices Stephen Breyer and Elena Kagan joined the court’s five conservatives in the majority. Justice Clarence Thomas, writing for the majority, stated that the Affordable Care Act (ACA) gives the Department of Health and Human Services (HHS) “broad discretion” to carve out religious and moral exemptions from the contraceptive mandate. The ACA itself does not explicitly mention birth control, instead requiring cost-free “preventive care and screenings”, which are determined by HHS. “It was Congress, not [HHS], that declined to expressly require contraceptive coverage in the ACA itself,” Thomas wrote. Accordingly, HHS had authority pursuant to the ACA to “identify and create exemptions from its own [g]uidelines.”
As background, Section 2713 of the ACA requires private health plans provide coverage for a range of preventive services, without cost sharing (such as copayments, deductibles, or co-insurance). The required preventive services are determined by a unit within HHS called the Health Resources and Services Administration (HRSA), based on recommendation of the U.S. Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices (ACIP), the Health Resources and Services Administration’s (HRSA’s) Bright Futures Project, and the Institute of Medicine (IOM) committee on women’s clinical preventive services. This requirement went into effect for non-grandfathered plans with plan-years beginning on or after September 23, 2010. The coverage requirements for women’s clinical preventive services, including contraception service, became effective for plans starting on or after August 1, 2012.
The Supreme Court’s analysis was limited to whether HRSA had administrative authority under the statute to carve out exemptions, and did not look to whether the administration’s exemption was mandated by the Religious Freedom Restoration Act. Thus, a future administration could potentially reduce the scope of this exemption.
The birth-control cases are Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania et al., case number 19-431, and Trump et al. v. Pennsylvania et al., case number 19-454.
For more information about this decision or how it may impact your group health plan, please contact your Executive Compensation and Employee Benefits Counsel at Smith, Gambrell & Russell, LLP.