November 2, 2017

The Trump administration undercut the Obamacare birth control mandate with a set of new interim final rules issued by the Department of Health and Human Services (DHHS) on Friday, Oct. 6 regarding contraceptive coverage for female employees. These efforts align with the Trump administration’s broader desire to fulfill campaign promises regarding religious liberty, repeal parts of the Affordable Care Act (ACA) and appease the Republican voter base. Wheaton College also awaits the resolution of its pending case in the Supreme Court regarding the legality of the Obama Administration’s decision to require these preventive services in student health plans, and these new rules aid the progressing case.  

Under the ACA, employers must provide health insurance coverage that includes preventive services for all FDA-approved contraceptives including Plan B, Ella, intrauterine devices (IUDs) and birth control pills. A small exemption was put into place by President Obama granting religiously-affiliated employers the opportunity to decline based on religious and moral convictions, and requiring that a third-party insurer make the coverage available. This exemption was created to guarantee women access to contraceptives “while accommodating religious liberty interests,” according to former Secretary of the Department of Health and Human Services Kathleen Sebelius in a statement to the New York Times.

The new interim final rules set by the DHHS this October now extend this exemption to employers, organizations, small businesses and higher educational institutions with “sincerely held religious or moral convictions.” This change in policy broadens the entities that may claim religious objections. Nonprofits and for-profits, including publicly traded firms, are not legally required to provide contraceptives. The executive office expanded the exemption as a fulfillment of the Executive Order Promoting Free Speech and Religious Liberty, section three, made by President Trump this May “to address conscience-based objections to the preventive-care mandate.”

Religious groups and right-wing media outlets are lauding the extended exemptions as a victory for religious liberty and the first amendment. Speaker of the House Paul Ryan proclaimed it “a landmark day for religious liberty.” However, not everyone agrees that the new set of rules exemplifies constitutional values. Already, numerous attorneys general across the nation have filed lawsuits in local district courts challenging the constitutional basis of the exemption. Those who oppose the policy change claim it favors certain religious views, and will leave “millions of women” under the support of state-funded programs to receive contraceptives, according to California Attorney General Xavier Becerra.

Beginning in 2011, a number of religious institutions, including Wheaton College, filed lawsuits against the Obama Administration in an effort to avoid being forced to cover “abortifacient drugs and devices to which the college objects,” according to President Ryken in an email sent to faculty and staff in 2012. In 2012, Wheaton and The Catholic University of America filed a joint lawsuit against the federal government. For years, the case has been pending in the Supreme Court with great uncertainty. In the text of these new interim rules, however, the federal government admitted to breaking the law regarding religious freedom and Wheaton’s case is soon to be addressed by the court in favor of religious rights to abstain from providing certain preventive care. The Becket Fund for Religious Liberty, the firm representing Wheaton’s case, explained in an interview to the Record, “the government is in the process of talking to Wheaton and other plaintiffs to get these cases finalized.”

Wheaton ended its own Student Health Insurance Plan (SHIP) in July of 2015 after the U.S. Court of Appeals denied the college’s preliminary request for protection from the original mandate. The college does not provide a health insurance plan for U.S. resident students. Nonresident international students with an F-1 Visa are currently required to participate in a third-party student health plan which the college views as a constructive way to help students adjust to a new environment without the stress of understanding the domestic healthcare system.

Going forward, the Vice President for Student Development, Dr. Paul Chelsen, told the Record, “the recent expansion of the exemption for religious institutions will have no impact on Wheaton College student insurance plans in the current academic year, because these plans are negotiated in the spring semester in advance of a new academic year.”

Chelsen indicated that a cohort of faculty, staff and/or students representative of multiple insurance demographics will form to “examine plan options for 2018-2019.” This committee of representatives would include student athletes, international students, those who are financially independent, students on their parent’s insurance and others to better understand how the extended exemption for religious institutions may open new opportunities for the college.