WEBVTT - Trump Moves to Restrict Access to Birth Control (Audio)

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<v Speaker 1>The Trump administration may be planning to roll back the

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<v Speaker 1>Affordable Care Acts requirement that employer based health insurance cover

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<v Speaker 1>a wide variety of contraceptive devices. Officials in the administration

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<v Speaker 1>are apparently considering a draft regulation that would permit any

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<v Speaker 1>company to refuse to provide contraceptive coverage on the ground

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<v Speaker 1>that it has a moral or religious objection. In two

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<v Speaker 1>thousand fourteen, the Supreme Court rule that closely held corporations

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<v Speaker 1>with religious objections were exempt from the contraceptive mandate, but

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<v Speaker 1>the requirement continues to plot to apply to almost all

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<v Speaker 1>other employer based insurance. We're going to talk about the

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<v Speaker 1>implications of this regulation if it were to be adopted,

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<v Speaker 1>and what's likely to happen with um, Patricia Moran, who

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<v Speaker 1>is of counsel at mince Levin. Patricia, welcome to the show.

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<v Speaker 1>We're very happy to have you here. Um, this is uh,

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<v Speaker 1>this would be quite a change from the Affordable Care

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<v Speaker 1>Act and and it's contraceptive mandate. How would this draft

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<v Speaker 1>regulation work in practice? Right? Well, it might be, UM,

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<v Speaker 1>it might be a little bit helpful to to talk

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<v Speaker 1>a little bit historically about about what's happened too, so

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<v Speaker 1>we can see where things are now. So yeah, So,

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<v Speaker 1>the Affordable Care Act required a wide variety of preventative

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<v Speaker 1>services to be offered without cost sharing, meaning employers have

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<v Speaker 1>to provide them no co or plans have to provide

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<v Speaker 1>them no no co payment, no percentage payment, etcetera. And

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<v Speaker 1>regulations that were promulgated said that preventative care includes a

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<v Speaker 1>wide range of contraceptive methods. This immediately launched a huge

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<v Speaker 1>controversy for a number of reasons under you know, with

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<v Speaker 1>a number of employers and the the Obama administration immediately

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<v Speaker 1>started back pedaling a little bit on that requirement. Um first,

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<v Speaker 1>they exempted religious employers that's known as the steeple exemption. Basically,

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<v Speaker 1>churches and houses of worship didn't have to provide this

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<v Speaker 1>at all under their plans to their employees, so total exemption.

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<v Speaker 1>Then they they stepped back a little further and softened

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<v Speaker 1>it and said that nonprofit religious organizations opposing contraception due

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<v Speaker 1>to religious objections also didn't have to offer it, but

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<v Speaker 1>there was an accommodation mechanism where they they didn't have

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<v Speaker 1>to offer the coverage, but they had to communicate with

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<v Speaker 1>their insurers and their third party administrators who would then

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<v Speaker 1>offer the coverage. And the idea was to create this

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<v Speaker 1>screen between the employer and the offer of coverage, but

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<v Speaker 1>their employees would still get it after some litigation. You've

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<v Speaker 1>probably heard of the hobby lobby case, which is the

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<v Speaker 1>big one people know about. This accommodation was extended to

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<v Speaker 1>private for profit closely held entities, so private companies, but

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<v Speaker 1>they had to be uh fairly small held by um

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<v Speaker 1>a small number of owners. And again this this so

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<v Speaker 1>called accommodation, it wasn't a flat out exemption. Employers still

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<v Speaker 1>had to apply to their t p A or insure

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<v Speaker 1>the insurer would then offer it. The employer had to

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<v Speaker 1>pass an internal resolution. Uh, there are a number of

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<v Speaker 1>steps the employer had to take to to get this accommodation.

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<v Speaker 1>So what is this new draft regulation if it went

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<v Speaker 1>into effect, what we did provide for right? So, so

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<v Speaker 1>two things, um, you know again we talked about like

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<v Speaker 1>who's whose exempt? Now really only churches get the total

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<v Speaker 1>exemption and nonprofit religious organizations and closely held companies get

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<v Speaker 1>an accommodation. But their steps they have to take, and

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<v Speaker 1>this regulation takes it further. Um. First of all, it

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<v Speaker 1>says any kind of employer. Um it could be um

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<v Speaker 1>uh publicly held company, doesn't have to be a closely

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<v Speaker 1>held or could be a private company that's not closely held,

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<v Speaker 1>a larger private company. Any kind of employer can get

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<v Speaker 1>an exemption, so the accommodation process goes away, and there's

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<v Speaker 1>no none of these steps required. That that's optional. You

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<v Speaker 1>can do it if you want to, but you don't

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<v Speaker 1>have to. It's it's really just a broad exemption for

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<v Speaker 1>any kind of employer who has this this sort of

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<v Speaker 1>moral objection to contraception. So, Patricia, is it legal for

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<v Speaker 1>the Health and Human Services or Treasury and Labor departments

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<v Speaker 1>to write a rule like this and at no point

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<v Speaker 1>is it going to be voted on by representatives and

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<v Speaker 1>it just goes into effect like that? Well, it's you know,

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<v Speaker 1>that's that's an interesting question. So they So, first of all, Um,

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<v Speaker 1>you did say that this this was a leaked regulation.

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<v Speaker 1>It's not actually in the federal regis there yet? You know,

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<v Speaker 1>we're not sure what what this will look like if

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<v Speaker 1>and when it becomes the real thing. Right, But the

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<v Speaker 1>but the item that was linked leaked is called an

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<v Speaker 1>interim final rule. And and that's interesting because usually when

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<v Speaker 1>you regulate. There's a process. You issue a proposed regulation,

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<v Speaker 1>people have an opportunity to comment, to send in letters.

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<v Speaker 1>The agencies review those comments and consider them and then

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<v Speaker 1>issue a final regulation. And sometimes there's even more steps

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<v Speaker 1>in between their um the proposed regulation can be withdrawn

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<v Speaker 1>and repropos etcetera. And what the interim final rule does

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<v Speaker 1>is it shortcuts that whole process and and basically it says,

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<v Speaker 1>when we issue this, it's it's final, it's effective and

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<v Speaker 1>employees sorry. The agencies can do that in a couple

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<v Speaker 1>of cases. They can do that if it's if it's

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<v Speaker 1>um uh, if it's okay to do so specifically under

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<v Speaker 1>the laws that you're promulgating under. In this case it

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<v Speaker 1>actually is. But you can also do it if there's

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<v Speaker 1>good cause um because it's it would be contrary to

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<v Speaker 1>the public interest to go through the whole process. So

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<v Speaker 1>it sounds like it sounds like we have a long

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<v Speaker 1>way to go, but unfortunately we don't have a lot

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<v Speaker 1>of time left in this segment, so we're gonna have

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<v Speaker 1>to leave it there. Patricia. Thank you to Patricia Moran

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<v Speaker 1>of Min's Leavin for being on the Bloomberg Law Program today.