Bloomberg Law
Feb. 28, 2023, 10:25 AM

Scrapping Moral Exemption to Contraceptive Coverage Draws Ire

Tony Pugh
Tony Pugh

The Biden administration’s push to stop private health plans from using moral objections to avoid covering contraceptive services is stirring strong opposition from a coalition of familiar foes.

Religious groups, anti-abortion organizations, and conservative think tanks are panning a proposed rule that would rescind the so-called “moral exemption” that allows insurers to withhold coverage of contraceptive services that are otherwise mandated by the Affordable Care Act.

The ACA generally requires non-grandfathered group health plans and non-grandfathered individual insurers to cover certain contraceptive services, such as birth control and contraceptive counseling, at no cost to enrollees. But in 2018, the Trump administration allowed group health plans, institutions of higher education, and health insurance issuers to seek exemptions from the coverage requirement if they held sincere religious or moral objections.

The new proposed rule from the Centers for Medicare & Medicaid Services (RIN: 0938-AU94), Department of Labor (RIN:1210-AC13), and Internal Revenue Service (RIN: 1545-BQ35) would retain the religious exemption but eliminate exemptions based on moral objections.

The proposal is part of a Department of Health and Human Services effort to strengthen access to reproductive health care, birth control, and family planning services following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion and opened the door for state laws that restrict the procedure. But critics say the proposal is undermining current policy in order to score political points with supporters, while marginalizing the concerns of those with strongly held principles.

“It’s a gratuitous swipe at people of conviction,” said Roger Severino, vice president of domestic policy at the Heritage Foundation and former director of the HHS Office for Civil Rights during the Trump administration.

Hannah Daniel, policy manager at the Ethics & Religious Liberty Commission, said in a statement that the proposal “seeks to frame objections to contraceptive services and abortion as a fringe moral concern.”

“The Administration is proposing to take us back to the days of unnecessarily putting individuals in the position of violating their own consciences to comply with government mandates,” Daniel said.

A ‘Disheartening’ Development

While pleased that the proposal retains the religious exemption, Cardinal Timothy M. Dolan, archbishop of New York, said in a statement that the potential loss of the moral exemption was “disheartening.”

“The proper reaction to the Supreme Court’s decision in Dobbs is not, as the proposed regulations claim, to make it free for women to sterilize themselves, but rather to relieve the burdens that our laws and culture place both on mothers and those who may become mothers,” said Dolan, who chairs the US Conference of Catholic Bishops’ committee for religious liberty.

Each organization plans to file public comments opposing the proposal by the April 3 deadline.

The 2018 rules also allow employers and private colleges and universities that object to covering contraceptive services to “completely remove themselves” from doing so, while ensuring that women “enrolled in their plans can access contraceptive services at no additional charge,” a CMS press release explained. But “these women and covered dependents” would only get this contraceptive access under the 2018 rule “if their employer or college or university voluntarily elects the accommodation,” the release said. That could leave “many without access to no-cost contraceptives,” the release added.

To address this potential loophole, the new proposed rule would create a pathway that allows “individuals enrolled in plans arranged or offered by objecting entities” to “make their own choice to access contraceptive services directly through a willing contraceptive provider without any cost,” the release said.

“This would allow women and covered dependents to navigate their own care and still obtain birth control at no cost in the event their plan or insurer has a religious exemption and, if eligible, has not elected the optional accommodation.”

But “there’s no good reason why that mechanism could not be provided for women who are employed by those who have moral objections, as well,” said Rachel Morrison, a fellow at the Ethics and Public Policy Center, who directs the center’s HHS Accountability Project.

“In America we have a long history of respecting moral objections,” Morrison added. “Especially when it comes to health care and issues related to life” like abortion and sterilization. “There’s robust protections for conscience rights, and this is a context where that should be recognized as well,” Morrison said.

Issuing Guidance, Funds for Training

After the Dobbs decision, the HHS, DOL, and Treasury met with health insurers and urged them to provide contraceptive coverage as required by the ACA. The departments also issued guidance that clarified ACA’s birth control protections, while the HHS provided nearly $3 million to boost training and technical assistance for family planning providers.

Matt Bowman, senior counsel at the Alliance Defending Freedom, said the administration should rescind the proposed rule “and leave in place the conscience protections that resolved this issue, definitively, three years ago.”

“The government has no business creating a mandate that’s not in the statute, and then forcing Americans to comply with that mandate when it violates their basic moral principles about the sanctity of human life,” Bowman said in an interview.

Under the proposal, a health plan that reimburses a provider for the cost of contraceptive services would be eligible for a reduction in their marketplace user fee in the amount of the services provided. That provision would create a “slush fund” to pay contraceptive providers and would be an unintended use of marketplace user fees, said Severino, who helped the Trump administration develop the moral and religious exemptions during his tenure at the HHS.

John F. Brehany, executive vice president and director of institutional relations at the National Catholic Bioethics Center, also took issue with the proposal’s funding.

In a statement, he said the “proposed rule is not merely a clever political move—providing benefits to likely voters while getting other people to pay for them. Rather, the Biden administration appears to be purposefully eroding protections for conscientious religious beliefs of U.S. citizens, protections which were built into the Constitution from the beginning. This is profoundly harmful to the legal and social order.”

Another proposed rule from the Biden administration (RIN: 0945-AA18) would change a Trump-era rule (RIN: 0945-AA10) that allowed the HHS to strip federal health funding from health-care facilities that take adverse actions against workers who cite a religious or moral objection to providing care. The HHS said in a statement that the proposal would offer up safeguards to protect against religious discrimination.

To contact the reporter on this story: Tony Pugh in Washington at

To contact the editors responsible for this story: Brent Bierman at; Cheryl Saenz at