Under the Affordable Care Act (ACA), people have access to a vital mix of preventive health care services, including contraceptive coverage, at no cost. Access to contraception is a critical benefit that has helped protect the health, economic security, and overall well-being of millions of women. Yet, it is under relentless attack by the Trump administration and other opponents of reproductive rights seeking to undo the ACA’s important benefits for women and families. In particular, the Trump administration is now considering expanding exemptions—beyond the requirements of recent court rulings—to make it even harder for women to access much-needed health care services. In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that owners of closely held for-profit corporations could exclude certain types of health care services and products—in this case, contraceptive counseling and methods—from their employees’ health insurance plans. The Obama administration responded by expanding the existing accommodation process to allow for-profit companies to forgo covering contraception for their employees through submitting a form stating their religious objections. Now, the Trump administration is expected to go even further by issuing an administrative rule that would allow any organization or individual to deny employees and their families contraceptive coverage on the basis of a religious or moral objection.
In light of Trump’s attacks on women’s health and rights, on May 31, 2017, the Center for American Progress submitted a Freedom of Information Act (FOIA) request to the U.S. Department of Health and Human Services (HHS) for all records of religious accommodation requests submitted to the agency under the ACA’s contraceptive mandate. Records were requested from when the ACA went into effect to the date the FOIA request was submitted and included filings made by requesting entities as well as the agency’s responses.* The purpose of the FOIA request was to learn more about the impact of Hobby Lobby on the nature of religious accommodations sought under the existing regulations. We received 558 pages of documents from January 2014 to March 2016 in response to our request.**
For-profit corporations represent the largest share of entities requesting exemptions
Based on the FOIA response, from January 2014 through March 2016, there were 45 entities requesting an accommodation, and all appear to have been granted that accommodation. Of the entities requesting an accommodation, 53 percent (n=24) were for-profit corporations; 27 percent (n=12) were religiously affiliated nonprofits; and 20 percent (n=9) were religiously affiliated educational institutions. For-profit corporations included companies from a variety of industries not traditionally thought of as faith-based entities, including: agriculture and forestry; apparel; construction; electrical equipment; food service; garden supplies and landscaping; home and office furnishings; hospital management; human resources; industrial machinery; information technology; manufacturing; packaging and distribution; plastics processing; publishing; real estate; tax services; telecommunications; and wholesale trade. Companies ranged in size from less than 50 employees to more than 1,000 employees, and at least five of these companies are subsidiaries of larger corporations. All but one of the educational institutions requesting exemptions were colleges or universities.
The share of for-profit corporations seeking exemptions increased from January 2014 through March 2016
An analysis of the accommodation requests by year shows the effect that Hobby Lobby had on the nature and frequency of these requests. Though the FOIA response provided by the HHS encompassed January 2014 through March 2016, there were no requests for exemptions until September of 2014, three months following the Supreme Court’s decision. In 2014 alone, there were 24 new requests for an exemption, representing 53 percent of all submissions during the time period covered by the FOIA request. More than half of the entities seeking exemptions in 2014 were for-profit corporations (n=13; 54 percent). The percentage of for-profit corporations seeking exemptions relative to religious schools and nonprofits increased over time, with 62 percent of the new requests in 2015 and 100 percent of the new requests in 2016 coming from for-profit corporations.
These findings showing the significant number of for-profit corporations seeking an accommodation relative to other types of organizations stand in stark contrast to public opinion on the issue. When Hobby Lobby was decided, a Reuters survey found only 35 percent of people believed employers should be able to choose what forms of contraceptives their health plans provide based on their personal religious beliefs. In addition, a survey conducted by CAP and the Small Business Majority a year after the decision showed that 62 percent of small-business owners believed that employers should be required to offer insurance that covers birth control, even if it conflicts with owners’ religious beliefs.
Exemptions targeted the most effective and most expensive services
As the process for seeking an accommodation was changed over time, 32 of the 45 entities completed forms indicating whether they were seeking an exemption from providing all forms of contraceptive coverage or from providing only a subset of medications and services. Of those, 50 percent requested a blanket exemption covering all forms of contraception, with the remaining 50 percent requesting exemptions from a specified subset. For-profit corporations made up 50 percent of the entities requesting blanket exemptions. Among the entities who were seeking exemptions for a subset of services, 11 entities indicated that they did not wish to provide coverage for emergency contraception or intrauterine devices (IUDs); seven entities specified that they would not provide coverage for “abortifacients”; two entities included references to “hormonal drugs”; and one entity each specified “sterilization,” “patient education,” and “abortion services,” respectively. Some requests indicated a lack of scientific understanding about contraceptive methods, such as one educational institution that requested an exemption from providing “abortifacients” but listed emergency contraception and IUDs under that category. These exclusions have significant health and cost implications. A lack of understanding about the type and function of available methods makes it particularly problematic that accommodations would allow employers to default to their own religious preferences rather than permitting people to make their own health decisions. It is also a clear violation of women’s reproductive rights. IUDs are more than 99 percent effective at preventing pregnancy and can last anywhere from 3 to 6 years, but this method was largely inaccessible to women without contraceptive coverage and with limited financial means before the ACA because of high out-of-pocket costs. The cost for more expensive methods, such as IUDs, can cost women more than $1,000 in out-of-pocket costs.
Data received under this FOIA reveal the harmful consequences of the Supreme Court’s overly broad application of religious liberty in Hobby Lobby. For-profit corporations utilizing the accommodation to avoid providing no-cost contraception to their employees can target methods that would be prohibitively expensive out-of-pocket for many women. Thanks to contraceptive coverage under the ACA, women saved roughly $1.4 billion on birth control pills in 2013 alone. No-cost preventive services, including contraception, are basic health care and should be covered as such. Without affordable and accessible coverage, the cost of these services would be out of reach for many women, as they may forgo care to prioritize other basic needs, such as food, rent, and child care. Forgoing contraceptive care would also increase a woman’s chances of experiencing an unintended pregnancy. Any effort to deny access to affordable contraceptive care is an infringement on women’s reproductive rights and justice and will have the most devastating impact on low-income women and women of color. Rather than giving more employers the ability to micromanage their employees’ health based on their personal religious views and moral convictions as well as denying access to basic health care, the Trump administration should be working to provide affordable, accessible health coverage to all. These efforts do nothing to support people most in need and only serve to advance harmful, expansive religious exemptions that put the health of women, LGBTQ people, and others at risk.
Laura E. Durso is the vice president of the LGBT Research and Communications Project at the Center for American Progress. Sharita Gruberg is the associate director of the LGBT Research and Communications Project at the Center. Jamila Taylor is a senior fellow for the Women’s Health and Rights Program at the Center. Theresa Chalhoub is a senior policy analyst for the Women’s Health and Rights Program and Health Policy at the Center.
*Authors’ note: Under the accommodations in place at the time, after the HHS was notified of an exemption request, it either directly notified insurers of the request and need to provide alternative means of coverage or notified the Department of Labor to execute the process for entities that were self-insured.
**Authors’ note: All materials on file with the authors. Not all requests submitted to the agency were provided in the present FOIA response and analyses only represent data made available by the agency. In addition to the requested information on religious accommodation requests, we also received documentation of an insurer that covers 161 religious employers, which are already exempt from the contraceptive mandate without requesting an accommodation and therefore are not included in our analysis.