Conservatives Are Using the Courts to Attack Health Care for All Americans

A doctor in Milton, Massachusetts, wheels his patient into his office, February 2018.

Conservative state officials, in conjunction with the Trump administration, have launched an all-out attack on health care in the United States. They have brought a suit to overturn the entirety of the Affordable Care Act (ACA), which would have serious consequences for nearly every American who has health coverage, whether through their employer, the individual market, Medicare, or Medicaid. And they found a partisan judge who, last Friday, proved willing to ignore the rule of law and help them advance their political agenda through the courts.

For now, the ACA remains the law of the land. But if the partisan decision in Texas v. United States is upheld, the consequences could be devastating. The Urban Institute estimates that overturning the ACA would result in 17 million more Americans being uninsured in 2019—in addition to coverage reductions that would occur due to the elimination of the individual mandate penalty. Millions of American families could be left without access to health care—and without the financial safety and peace of mind that health insurance provides. Overturning the law would also have serious negative effects on public health and drug development and would shorten the life of the Medicare trust fund. Moreover, it would provide a major tax break to the wealthiest Americans, insurance companies, and drug manufacturers.

Supporters of the decision have talked about this as an effort to end “Obamacare,” which may cause some people to mistakenly believe it only affects those who obtain coverage through the individual marketplace. Nothing could be further from the truth: Virtually no American’s health care coverage would be safe from the effects of this decision. Here are just some of the impacts that this decision, if upheld, would have.

Risks for people who obtain coverage through their employer

  • Lifetime and annual limits on coverage: Polling shows that without the ACA’s ban on lifetime and annual caps on benefits, firms would choose to reinstate limits on coverage. Tens of millions of workers and dependents could face annual or lifetime limits.
  • Loss of coverage for young adult children: The ACA requires employer plans that cover dependents to include young adults up to age 26. More than 2 million young adults have gained coverage under the ACA’s dependent coverage provision.
  • Loss of free preventive services, including contraception: The ACA requires preventive services—such as immunizations; screenings for cancer, diabetes, and depression; and well-child visits—to be available at no cost to the patient. Womensave about $250 annually thanks to the lack of cost sharing for contraception.
  • Elimination of rebates to cover excessively high premiums: The ACA requires insurers to provide rebates if they overprice premiums relative to actual medical costs. Under the ACA’s medical loss ratio provision, insurance companies paid back $344 million in 2016 to people with employer coverage.

Risks for people who receive coverage through Medicare

  • Increases in premiums and out-of-pocket costs: Elimination of the ACA would increase some beneficiaries’ premiums, deductibles, and copayments in Medicare Part A and Part B; overturning the law would eliminate Medicare savings, and premiums are based on program spending.
  • Cost sharing for preventive services such as mammograms: Under the ACA, Medicare provides preventive services and covers a yearly wellness visit at no cost to the patient.
  • Possibility of falling back into the prescription drug coverage gap: The ACA narrowed the Part D coverage gap and was on track to completely fill it by 2020. Without the ACA, many seniors could face higher costs for prescription medications.

Risks for people who receive coverage through Medicaid

  • Loss of coverage under the Medicaid expansion: About 12 million people are covered under the Medicaid expansion, which was funded mostly by the federal government under the ACA.
  • Higher costs for preventive services such as children’s vaccines: The ACA provided a financial incentive for states to provide preventive services to Medicaid beneficiaries free of charge, which a number of states currently utilize.
  • Fewer options to receive care in homes and communities: The ACA provided new options to states to allow elderly enrollees and enrollees with disabilities to receive care in their homes. If the law is overturned, more enrollees will be forced into institutional care.

Risks for people who buy insurance on their own

  • Loss of tax credits that make coverage affordable: Nearly 9 in 10 enrollees in the ACA marketplaces receive premium tax credits. Without the ACA, enrollees would lose financial assistance toward monthly premiums, as well as funding that helps lower deductibles and copayments.
  • Increased costs or denial of coverage due to pre-existing conditions: Without the ACA, individual market insurers would be allowed to charge more, exclude coverage benefits, or turn away people based on medical history. More than 133 millionAmericans with pre-existing conditions could be subject to discrimination if they ever needed individual market coverage.
  • Increased costs for older enrollees: The ACA limits how much more insurance companies can charge older people for coverage relative to younger ones. Without the ACA’s protections, the elderly and near-elderly would see their premiums rise

The legal reasoning behind the lower court’s decision to overturn the ACA is so poor that it has been decried by even some of the most strident conservative legal critics of the law—including those who have backed the previous efforts to overturn it through the courts. Congress has tried and failed to repeal the ACA, and voters in the midterm elections made it clear that they care about keeping protections for pre-existing conditions. Yet the court’s ruling has been approvingly cited by conservative political officials, including President Donald Trump. As such, the decision is best understood not as a legal opinion but instead as a policy preference pursued through the U.S. judiciary. That preference could not be clearer: to give the country’s wealthy and special interests massive taxes cuts—and pay for them with everyone else’s health care.




State and Federal Contraceptive Coverage Requirements: Implications for Women and Employers–UJl9zNocQ0KN8sNboiXq-Is7ri7ERgc5AOrlcI9Jkun0vMLWO2c6OEdVCaT924Zm8lRAguOVrZaG75KYWciO0BPWRUg&_hsmi=61727079&utm_content=61727079&utm_source=hs_email&hsCtaTracking=081209d1-aacb-4d2b-85b8-d9d3d1101ef0%7C765b6ce1-10b8-48ec-b7e8-ca92cce70fb1

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Contraceptive Coverage under the Affordable Care Act (ACA) has made access to the full range of contraceptive methods affordable to millions of women. Since it was first issued in 2012, this provision has been controversial and has been the focus of two major cases that have reached the Supreme Court. Following the Hobby Lobby ruling, the Obama Administration took the stand that almost all women had an entitlement to the contraceptive benefit and developed an “accommodation” to assure they would still get coverage, even if their employer had religious objections to contraception. The Trump Administration, in contrast, has prioritized the rights of employers, and in October 2017, issued regulations that significantly broadened the exemption to nearly any employer with a religious or moral objection. The new regulations have been challenged by 8 states and have been blocked from being implemented pending the outcome of the litigation.

Before the ACA was passed, many states had enacted contraceptive equity laws that required plans to treat contraceptives in the same way they covered other services. In addition, since the ACA was passed, a number of states have enacted laws that basically codify in state legislation the ACA benefit rules (requiring all plans to cover, without cost-sharing each of the 18 FDA approved contraceptive methods). This issue brief provides an update on the status of the continuing litigation on the federal contraceptive requirement and explains the interplay between the federal and state contraceptive coverage laws and the implications for employers and women.

Background on State and Federal Contraceptive Coverage Requirements

Before the ACA, coverage for prescription contraceptives was generally widespread in the private and public sectors, but not universal, and certainly not free of cost-sharing. In 2000, a ruling by the Employment Equal Opportunity Commission found that employers that covered preventive prescription drugs and services but did not cover prescription contraceptives were in violation of the Civil Rights Act.1 Currently, 29 states and DC2 require insurance plans to cover contraceptives, with a wide range of coverage and cost-sharing requirements, and exemptions among these mandates (Appendix A). State laws, however, do not have authority over all plans; they only apply to state regulated (fully-insured) plans, but not self-funded plans under ERISA where 60% of covered workers are insured.3

The ACA is the first law to set preventive coverage requirements for health insurance across all markets – individual, small group, large group and self-insured plans. Starting in 2012, all new private plans were required to cover, without cost-sharing, the full range of contraceptive services and supplies approved by the Food and Drug Administration (FDA) as prescribed for women. Only employers that were classified as a “house of worship” were exempted from this requirement. While a number of states had contraceptive equity laws that required plans to cover some or all methods, cost-sharing typically applied. Fully-insured plans must comply with both state and federal laws. For some health services, the federal law may require a higher level of benefits, and for other services the state law may require a higher level of benefits.


The outcome of the litigation challenging the Trump Administration’s new regulations is not clear. Currently, the federal government is blocked from enforcing the new regulations. The new regulations would substantially expand the exemption to nonprofit and for-profit employers, as well as to private colleges or universities with religious or moral objections to contraceptive coverage. If the new regulations become effective, for women enrolled in fully-insured employer plans, the scope of their contraceptive benefits would depend on the coverage policies and exemptions established by state laws. Employers who qualify for the exemption under federal law would still need to comply with the state contraceptive requirement. Depending on the state law, employers may still have to provide no-cost coverage for some or all methods of contraception or a narrower set of contraceptive benefits. For women covered by fully-insured plans issued for employers with religious or moral exemptions, their choice of contraceptive methods would be determined by the scope of benefits and exemptions allowed by state law where they live.



Trump rolls back Obamacare birth control mandate

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The new policy reignites the battle over one of the health care law’s most controversial provisions.

The Trump administration will allow virtually any employer to claim a religious or moral objection to Obamacare’s birth control coverage mandate under a sweeping rollback announced Friday.

The new policies, which take effect immediately, reignite a fierce battle over one of the health care law’s most controversial provisions and quickly drew legal challenges. The requirement to provide FDA-approved contraception at no cost was long opposed by religious groups that heavily favored Trump, and has been wrapped up in litigation for more than five years.

“The United States has a long history of providing conscience protections in the regulation of health care for entities and individuals with objections based on religious beliefs or moral convictions,” the administration wrote in new rules.

The American Civil Liberties Union said it will file a lawsuit on Friday to block the long-anticipated rules from the Trump administration, and California Attorney General Xavier Becerra also announced plans to sue. Women’s health groups for months have been preparing lawsuits against the new policies, which they say will enable employers to deny their workers access to needed care.

The Trump administration said it was acting to protect individuals and groups from being forced to violate their religious beliefs as it downplayed concerns that more women would struggle to afford birth control.

“The attempts by the previous administration to provide some protections were inadequate,” said a senior HHS official of the Obama administration’s efforts to provide workarounds for religious groups. “They are being rebuffed here.”

The administration issued two rules — one outlining how an employer could claim an exemption for religious beliefs, the other outlining an exemption for sincerely held moral convictions — on the same day Attorney General Jeff Sessions called for sweeping protections for religious freedom in a government-wide memo that could have far-reaching implications.

The new birth control rules hew closely to a draft that leaked in May and drew swift condemnation from Democrats, public health groups and women’s health care advocates.

“Today’s outrageous rules by the Trump Administration show callous disregard for women’s rights, health, and autonomy, said Fatima Goss Graves, president and CEO of the National Women’s Law Center. “By taking away women’s access to no-cost birth control coverage, the rules give employers a license to discriminate against women. We will take immediate legal steps to block these unfair and discriminatory rules.”

It’s unclear how many organizations will now look to drop birth control coverage from their insurance plans. In the aftermath of the Supreme Court’s 2014 Hobby Lobby ruling that closely held private companies could seek an exemption on religious grounds, only a few dozen employers requested one from the Obama administration, POLITICO found last year.

The birth control coverage mandate is broadly supported by the general public, polling has found over the years. And it appears to have reduced women’s spending on contraception. One study estimated that women saved $1.4 billion on birth control pills in 2013 as a result of the coverage requirement. About 55 million women have directly benefited from no-cost birth control, according to an Obama administration report released last year.

“Any move to decrease access to these vital services would have damaging effects on public health and women’s health,” said Haywood Brown, director of the American Congress of Obstetricians and Gynecologists.

Trump hinted at his plan to roll back the birth control mandate this spring as he signed an executive order on religious freedom, but the regulation had been tied up at his budget office for more than four months. By weakening the mandate, Trump is unilaterally paring back a small piece of Obamacare detested by his conservative base, which has grown increasingly frustrated with the GOP’s inability to fulfill its longstanding promise to repeal the health care law.

The Affordable Care Act’s birth control mandate took effect in 2012 after the Obama administration accepted a recommendation from an independent panel to require plans to cover it at no cost to women. The administration exempted houses of worship and unsuccessfully tried to make accommodations for religiously affiliated groups to allow their employees to still receive the coverage from a third party. But those groups rejected the accommodations and filed dozens of lawsuits, leading to two separate Supreme Court challenges, including the Hobby Lobbydecision.

The Supreme Court last year ordered the Obama administration and religiously affiliated organizations, such as universities and charities, to reach agreement on an accommodation that would let employees of such groups have access to no-cost contraception. They never resolved the issue.

Advocates for religious groups called the rule a major step forward after years of fighting the mandate.

“Today President Trump delivered a huge victory for conscience rights and religious liberty in America,” said Susan B. Anthony List President Marjorie Dannenfelser in a statement. “No longer will Catholic nuns who care for the elderly poor be forced by the government to provide abortion-inducing drugs in their health care plans.”

The Trump administration argues that women have affordable contraceptive options should employers drop coverage, and that several government programs provide free or subsidized contraception for low-income women, including Title X family planning grants.

But women’s health advocates say that program is already underfunded, and other Trump administration priorities — including stalled plans to repeal Obamacare and defund Planned Parenthood — would further erode access to affordable birth control.

“President Trump’s shameful war on women rages on,” said Rep. Jan Schakowsky (D-Ill.) in a statement. “By ending the birth control mandate, the President and his Administration are allowing employers to stand in the way of women accessing the healthcare that they and their doctors have deemed necessary.”

Ten Ways That the House American Health Care Act Could Affect Women–Xz_huX9HeDtI1hH73l1chLmp0YBItVc7_3cc9H4OMjigf5DrH0WOHBpdU5F8nG_nLnZJWctuELAavHFsjG6mLIBycQA&_hsmi=51786609

Women have much at stake as the nation debates the future of coverage in the United States. Because the Affordable Care Act (ACA) made fundamental changes to women’s health coverage and benefits, changes to the law and the regulations that stem from it would have a direct impact on millions of women with private insurance and Medicaid. On May 4, 2017, the House of Representatives passed the American Health Care Act (AHCA), to repeal and replace elements of the ACA (Appendix Table 1). It would eliminate individual and employer insurance mandates, effectively end the ACA Medicaid expansion, cap federal funds for the Medicaid program, make major changes to the federal tax subsidies available to assist individuals who purchase private insurance, and ban federal Medicaid funds from going to Planned Parenthood. It would also allow states to waive the ACA’s Essential Health Benefits requirements and permit health status as a factor in insurance rating for individuals who do not maintain continuous coverage with the goal of reducing insurance costs.1 The Senate will now take up legislation to repeal and replace the ACA and may consider several elements that the House has approved in the AHCA. This brief reviews the implications of the AHCA for women’s access to care and coverage.