With the midterms out of the way, HHS has released two final rules affording employers wide leeway to opt out of the so-called contraception mandate. The first exempts employers with religious beliefs from the obligation to include contraception in the health insurance package they offer to their employees. The second does the same for employers with “moral convictions opposing services covered by the contraceptive mandate.”

This isn’t the first time we’ve seen these rules. In October 2017, the Trump administration tried to put them into effect without offering any notice and comment. At the time, I argued that the rules were procedurally defective, and obviously so, because the administration had no good reason for skipping notice and comment. In the inevitable litigation that ensued, two district courts (here and here) agreed and put the rules on hold. The Trump appealed, and the cases are pending in front of the Fourth and Ninth Circuits.

In the meantime, HHS took public comments. The final rules released yesterday include responses to those comments and vary slightly—but only slightly—from the original versions. In this long post, I’ll cover what they do, whether they’re legal, and what the Trump administration should’ve done instead.

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Under the new rules, employers have three options. First, they can continue to adhere to the contraception mandate, as most will surely do. Second, they can use an Obama-era “accommodation” to omit contraception from their plan, but their insurer (or third-party administrator) will independently arrange to cover contraception. Think of this as a workaround that guarantees contraception coverage to employees while allowing employers to distance themselves from its provision. In 2015, it appears that just 63 employers invoked the accommodation.

Third, employers can claim an outright exemption from the mandate for all or some forms of contraception. That’s a big change. Previously, only houses of worship could get an exemption. Now, any employer can. Even publicly traded companies can invoke a religious exemption (though they cannot get an exemption for moral, non-religious objections).

It’s not clear how many employers will take advantage of either the accommodation or the newly expanded exemption. HHS estimates that perhaps 100 employers, covering roughly 2.4 million people, will invoke religious accommodation. Another 109 employers, representing 727,000 people, are expected to invoke the full-blown religious exemption. HHS estimates that only a trivial number will take advantage of the exemption for moral objections.

I have no idea of those estimates are right, and HHS has an incentive to downplay the exemptions’ effects. Still, they sound plausible to me. The moral exemption appears to be crafted specifically to cover just two non-religious anti-abortion groups. Even for religious organizations, invoking the exemption will be controversial. The University of Notre Dame, for one high-profile example, has come under intense fire for circumscribing access to contraception coverage. Few employers, even those with sincere religious convictions, will want to pick that fight.

But I can’t be sure about the numbers, and HHS can’t be sure either. No matter how you cut it, many thousands of women who work at some religious institutions—think in particular here of evangelical and Catholic universities, Catholic hospitals, Catholic schools—will no longer receive contraception coverage from their employers. They’ll have to buy it on their own.

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Are the rules legal? Procedurally, HHS is on safer ground now that it’s walked through notice and comment. To be sure, the courts are sometimes nervous when agencies issue interim final rules and purport to conduct notice and comment after the fact. If a rule has already gone into effect, the courts ask, isn’t the notice-and-comment process a farce? Does the agency, at that stage, really have an open mind about the comments it receives?

Those concerns will certainly be in play here. Oddly enough, though, the fact that the courts put the initial rules on hold will play into the Trump administration’s hands. Because the interim final rules weren’t allowed to take effect, they acted in practice like proposed rules. And there’s nothing anomalous about taking notice and comment on proposed rules. I’d expect the Trump administration to seek dismissal of the pending appeals on the ground that the existing injunctions, which ran against the interim final rules, no longer apply.

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On the merits, HHS hasn’t put its best foot forward. For both rules, HHS argues that it’s allowed, under section 2713(a)(4) of the Public Health Service Act, to offer whatever exemptions it wishes to from the contraception mandate.

Go read that provision, though. It doesn’t say anything of the kind. It says, instead, that employers and insurers “shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for [certain forms of preventive care] and … with respect to women, such additional preventive care and screenings as provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” which is an HHS subagency.

Simple, right? In the Obama administration, HRSA said that contraception was a qualifying preventive service. So contraception has to be covered without cost-sharing, unless and until HRSA decides that contraception isn’t a preventive service.

HHS sees matters differently. Its entire argument hinges on a single word: “as.”

Through use of the word “as” in the phrase “as provided for,” [the provision] requires that HRSA support how those services apply—that is, the manner in which the support will happen, such as in the phrase “as you like it.” When Congress means to require certain activities to occur in a certain manner, instead of simply authorizing the agency to decide the manner in which they will occur, Congress knows how to do so. Thus, the inclusion of “as” ... , and its absence in similar neighboring provisions, shows that HRSA has been granted discretion in supporting how the preventive coverage mandate applies—it does not refer to the timing of the promulgation of the Guidelines.

This is specious. The word “as” does not license HHS to adopt any and all limitations on the coverage of preventive services that it wishes. If it did, HHS would have the legal authority to say that preventive services are covered on Tuesdays, but not on Wednesdays, or to cover only those women whose last names start with Z.

That’s not a tenable reading. By its terms, the statute requires coverage of the “additional preventive care and screenings” that HRSA selects from the broader universe of “care and screenings.” That limited charge makes sense: HRSA is a health agency, one that “work[s] to improve the health of needy people.” So it’s sensible that the statute allows HRSA to say what gets covered, not who has to cover it.

To sharpen the point, consider the following statute: “All cars must have seatbelts that meet certain specifications, including any additional specifications as provided for in guidelines drafted by the Seatbelt Safety Administration.” If the Seatbelt Safety Administration exempted red cars from its guidelines, that wouldn’t plausibly be an exercise of its delegated authority to write safety guidelines. It would constitute a revision Congress’s judgment that “[a]ll cars”—red and blue and gray alike—must have safe seatbelts.

Yet that’s exactly the argument that HHS is pushing. The agency saying that everyone who objects on religious or moral grounds—all those red cars—should be exempted. That’s a terrible argument, and I think it should fail.

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HHS does have a better argument up its sleeve, at least for the rule about religious exemptions. (Nothing can save the misbegotten moral exemption rule.) There’s a deep question—one that I don’t pretend to know the answer to—about whether and to what extent agencies can invoke the Religious Freedom Restoration Act (RFRA) to tailor exemptions to statutes.

RFRA says generally that the government can’t impose a substantial burden on a person religious exercise unless it’s got a good reason to do so. But RFRA contemplates that courts will grant relief for any violation, not agencies. It doesn’t purport to give agencies the open-ended power to craft exemptions based on the agencies’ sense of the depth of the religious objection and the substantiality of Congress’s interest in adopting the rule. Maybe that means that Congress hasn’t delegated that power to agencies at all.

On the other hand, RFRA says that any statutes that Congress adopts are “subject” to RFRA “unless such law explicitly excludes such application.” So maybe the Affordable Care Act should be understood to contain within it a silent proviso: agencies must faithfully implement the law as written, except to the extent that doing so would conflict with RFRA. That kind of argument explains why the Obama administration could offer an exemption to houses of worship in the first place. Maybe it’s also why the Trump administration, with a different view about how to strike the right balance between governmental objectives and religious exercise, has the power to put that exemption on steroids.

But that view, which HHS is pushing hard, also raises some tough questions. What if the courts, for example, take a narrower view of what RFRA requires than the agency does? Should the agency’s views or the court’s prevail? If there’s a clean doctrinal answer to whether RFRA affords agencies the power to exempt private parties from generally applicable statutes, I’m unaware of it. My suspicion is that we’re in for some very interesting litigation.

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One last point. Nothing in the ACA itself requires employers to cover contraception. The statute says only that employers have to cover those preventive services for women that are listed in HRSA guidelines.

There are all sorts of good reasons that the Obama-era HRSA listed contraception. Among other things, contraception allows women to “avoid unwanted pregnancies and space their pregnancies to promote optimal birth outcomes.” There’s nonetheless a reasonable case to be made that contraception isn’t primarily aimed at avoiding future disability or disease, so it’s not really a preventive service. If that’s right, the Trump administration has the discretion to omit contraception from the guidelines altogether.

So why monkey around with all these legally dubious exemptions? Given the Trump administration’s apparent commitment to bulldozing the contraception mandate, I remain baffled why it hasn’t adopted an approach that presents fewer legal pitfalls.

@nicholas_bagley

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