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The Courts Blocked Trump From Granting Religious Exemptions For Birth Control Coverage. So He’s Trying Again.

The original versions of the rules were blocked by a judge last year.

Posted on November 7, 2018, at 6:11 p.m. ET

Joshua Roberts / Reuters

The Trump administration released two rules Wednesday evening that would allow employers with “religious or moral” objections to providing insurance coverage for birth control to be exempt from providing that coverage.

The rules are amended versions of rules that the administration first released in October 2017. Several organizations quickly took the administration to court over the original rules, and they were blocked by two federal courts. If the new rules are not blocked by the courts again, they are scheduled to go into effect in mid-January 2019.

The Department of Health and Human Services appears to have tailored the rules (the final versions have not yet been posted to the federal register) in the hopes that this time they will stick. A memo pertaining to the rules stated that the new versions contained changes based on “public comments” made in the federal register in 2017. It was not immediately clear what those changes were.

But HHS also says the new rules will affect more women than it previously estimated. An HHS spokesperson told BuzzFeed News in 2017 that the previous versions of the rules were not expected to affect more than 120,000 women’s contraception coverage; they now estimate that “that no more than 126,400 women of childbearing age will be affected by the expanded exemptions,” the memo states. “As noted above, this is less than 0.1% of the over 165 million women in the United States.”

Both the new and old rules pertain to a section of the Affordable Care Act that requires employers to provide coverage for “preventative services,” including all forms of birth control approved by the Federal Drug Administration.

The first of the new versions allows exemptions for entities that provide insurance coverage and object to providing coverage for any or some kinds of birth control “on the basis of sincerely held religious beliefs,” HHS wrote in a press release sent out Wednesday.

The second rule pertains to “nonprofit organizations and small businesses that have non-religious moral convictions” against providing birth control coverage. Both rules apply to educational institutions, insurance issuers, “and individuals,” the memo regarding the rules released by HHS states. However, the moral exemption does not apply to publicly traded businesses, and neither exemption applies to government entities.

Planned Parenthood blasted the new rules Wednesday. “President Trump and his administration will do everything they can to take birth control away from women in this country,” the organization’s executive vice president Dawn Laguens said in a statement sent to BuzzFeed News. “Clearly, they are willing to go around the courts to make it happen.”

The anti-abortion group Susan B. Anthony List, however, was thrilled with the administration’s announcement, calling it a “victory for conscience rights.” The moral exemption in the rule will apply to SBA List, which is a secular organization that opposes some forms of birth control.

“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,” SBA List President Marjorie Dannenfelser said, referring to the Little Sisters of the Poor, which filed a lawsuit against the Obama administration when the section of the Affordable Care Act pertaining to contraception coverage was originally issued.

Under the Affordable Care Act — as it existed under President Barack Obama — no organizations were allowed exemptions from the rule for “moral reasons,” but religious institutions that opposed covering contraception could apply for an exemption from the mandate. The government would then provide separate contraception coverage for its employees.

The judge in the federal case that blocked the original versions of the rules in December 2017 stated in her opinions that she found the rules would likely cause the plaintiff — in that case the state of Pennsylvania — to “suffer irreparable harm,” both financially (because women could then be dependent on state-funded programs) and “harm to the health, safety, and wellness of the Commonwealth’s female residents,” she wrote.

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