On May 4, 2017, President Trump issued a six-part executive order which, according to the Trump administration, is intended to promote free speech and religious liberty. One provision under the order calls on DOL, HHS, and Treasury (the Departments) to consider amending existing regulations under the ACA's preventive health services mandate to address conscience-based objections to the rules (see Practice Note, Preventive Health Services Under the ACA). (Regarding ACA compliance, see Practice Note, Affordable Care Act (ACA) Overview and Affordable Care Act (ACA) Toolkit.)

The ACA's preventive services rules include a requirement that health plans and insurers provide first-dollar coverage for a broad set of FDA-approved contraceptives and contraceptive counseling, among other items and services (see Practice Note, Contraceptives Coverage Under the ACA). The ACA's contraceptives mandate has been the topic of ongoing litigation and administrative guidance. Earlier this year and prior to President Trump's inauguration, the Departments announced that they did not intend to make changes to an existing religious accommodation under the contraceptives mandate, in response to litigation that challenged the mandate under the Religious Freedom Restoration Act (RFRA) (see Legal Updates, No New Religious Accommodation in ACA Contraceptives Coverage Challenge and Supreme Court Returns Contraceptives Cases to the Courts of Appeals).

The first section of the order contains a general policy statement recognizing the role of religious freedom under federal law and stating the executive branch's commitment to enforcing the Constitution's protections for religious freedom. The order's second section, which addresses religious and political speech, states that Treasury will not penalize houses of worship and religious organizations for speaking out on moral or political issues from a religious perspective.

The order's third section directly references the ACA's preventive services mandate (42 U.S.C. 300gg-13; Section 2713 of the Public Health Service Act (PHSA)). This section instructs the Departments to consider amending the existing regulations under the preventive health requirement to address "conscience-based objections" to the requirement (see Legal Update, Final Contraceptive Rules Include TPA Role for Providing Certain Contraceptive Coverage).

Additional sections include a severability provision and a directive to the Attorney General regarding interpreting religious liberty protections under federal law.

In a related development, HHS Secretary Tom Price issued a statement that HHS:

In an executive order issued in January 2017 (on his inauguration day), President Trump instructed the Departments to use their full authority and discretion in waiving, deferring, granting exemptions from, or delaying implementation of any ACA provision or requirement that would impose a fiscal burden on health insurers, other entities, and individuals (see Legal Update, Trump Administration Orders Delay of ACA Implementation). Under the earlier order, coupled with the administration's latest order, it is likely just a matter of time before the Departments issue guidance to expand the available exemptions and accommodations involving the ACA preventive services rules or take a more narrow reading of the scope of covered services.

The new order does not expressly reference other benefits-related provisions that could be the subject of religious freedom challenges, such as coverage of same-sex benefits or transition-related services (see Practice Notes, Domestic Partner Health Benefits, Nondiscrimination in Health Programs and Activities Under the ACA (Section 1557), and Same-Sex Marriage Developments for Retirement Plans Toolkit).