New Proposed Rule for Expanded Birth Control Coverage Under ACA

On Jan 30, 2023, the HHS and the DOL proposed a new rule to strengthen access to birth control coverage under the Affordable Care Act (ACA). Under the ACA, most plans are required to offer coverage of birth control with no out-of-pocket cost. The goal of the proposed rule is to expand and strengthen access to this coverage, specifically for women whose employers exclude this coverage because of a moral or religious objection. The action is the latest effort by the Biden-Harris Administration to bolster access to birth control at no cost.

Current Status

The ACA guarantees coverage of women’s preventive services, including birth control and contraceptive counseling, at no cost for women who are enrolled in group health plans. However, in 2018, final regulations expanded exemptions for religious beliefs and moral convictions allowing private health plans and insurers to exclude coverage of contraceptive services based on moral or religious objection.

What is Changing?

The proposed rules would remove the moral exemption and retain the existing religious exemption.

The 2018 rules include an optional accommodation that allows objecting employers to completely remove themselves from providing birth control coverage while ensuring women and covered dependents enrolled in their plans can access contraceptive services at no additional charge. Under the 2018 rules, these women and covered dependents would get this contraceptive access only if their employer, college, or university voluntarily elects the accommodation—leaving many without access to no-cost contraceptives. 

The proposed rules seek to ensure broader access to contraceptive services by creating an independent pathway for 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. 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. The proposed rules leave in place the existing religious exemption for entities and individuals with objections, as well as the optional accommodation for coverage.

How Will it Work?

The proposal creates a new “individual contraceptive arrangement” through which individuals enrolled in plans sponsored by employers with religious objections could access no-cost contraceptive services without the involvement of their employer, group health plan, plan sponsor, or insurer. A provider or facility that furnishes contraceptive services in accordance with the individual contraceptive arrangement would be reimbursed through an arrangement with an Exchange insurer, which would request an Exchange user fee adjustment to cover the costs. The practical details of this arrangement will obviously need to be worked out over time.

More Information

The U.S. Supreme Court’s decision in Dobbs, overturning Roe v. Wade, has placed a heightened importance on access to contraceptive services nationwide. HHS released a report in August on actions taken to ensure access to reproductive health care, including contraception, following the Supreme Court’s ruling, with further details on future actions and commitments. Following is a link to the report: Reproductive Care Report