In an executive order dated May 4, 2017, President Trump called for the Departments of Labor (DOL), Health and Human Services (HHS), and Treasury to revise existing guidance under the Affordable Care Act's (ACA's) preventive services rules (which include the controversial contraceptives mandate) to address conscience-based objections.
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).
Statements of Policy Under the Executive Order
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.
Additional sections include a severability provision and a directive to the Attorney General regarding interpreting religious liberty protections under federal law.
HHS Response to the Trump Executive Order
In a related development, HHS Secretary Tom Price issued a statement that HHS:
Welcomes the new executive order directing HHS to reexamine the Obama administration's interpretation of the ACA's preventive services mandate.
Would be taking action "in short order" to fulfill President Trump's directive to protect the religious beliefs of those that provide health insurance for their employees.
Practical Impact
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.