Massachusetts became the first state to cement an Obama-era regulation that women and gender minorities should have access to birth control at no cost.
The Trump administration rolled back the so-called contraceptive mandate effective immediately in October by issuing two regulations: nonprofits and for-profit employers could object to providing free birth control to employees based on “religious” beliefs and publicly traded employers with “moral objections” are open to do the same. These policies apply to universities and colleges that issue student health plans.
Like Trump’s regulation, the Massachusetts policy — that requires state health insurers to provide free birth control — will go into effect immediately. Governor Charlie Baker (R) signed the bipartisan bill Monday evening, after it nearly unanimously passed in the state legislature. The bill went further than President Barack Obama’s 2012 regulation by allowing plans to cover birth control pills for a full year at once and emergency contraception (like the morning after pill) without prescription. Insurance companies have six months to get new rules into place. Only churches or other religious institutions can opt out of these plans.
“All the stars were aliened to make this happen,” a representative from Blue Cross Blue Shield Massachusetts told WBUR’s Carey Goldberg. “It was the right time and the right thing to do.” The insurer added this sends a message to Washington, D.C. and other states.
Attorneys generals from five states recently asked a federal judge to stop the Trump administration’s birth control rollback. It came as part of a lawsuit filed by the states in October that argued the regulations were unconstitutional.
Two national advocacy groups have also challenged Trump’s October regulations. The National Women’s Law Center and Americans United for Separation of Church and State filed a lawsuit on behalf of five women who were being denied free birth control next year, including three from the University of Notre Dame. University of Notre Dame has since announced it will continue to provide health coverage for birth control through third-party providers — Meritain Health and OptumRx — as it had in the past. The lawsuit’s other plaintiffs are employees of an Illinois university and Indiana church.
No-cost birth control is generally very popular; over 77 percent of women and 64 percent of men support it according to the Kaiser Family Foundation (KFF).
Even so, the contraceptive mandate has faced push-back. Religious employers have fought the mandate in court, and two cases (Zubik v. Burwell and Burwell v. Hobby Lobby) reached the Supreme Court. KFF has a good brief explaining these cases, but the general gist is Burwell v. Hobby Lobby enabled religiously affiliated non-profit employers and closely held for-profit corporations to seek an accommodation from the mandate. This is why University of Notre Dame, a Catholic research university, has a third party provider administering free birth control health plans at no cost to the school. As of 2015, 10 percent of nonprofits with 5,000 or more employees sought accommodation.
This arrangement wasn’t acceptable to all nonprofits and thus another lawsuit: Zubik v. Burwell. But the Supreme Court sent this case back to the lower courts in May 2016, leaving the contraceptive mandate in limbo. Trump’s October regulation looked to definitely provide not just accommodations but exemptions to employers. Like Obama’s 2012 regulation, it will continue to be challenged in court.