As a presidential candidate, Joe Biden pledged to undo numerous damaging Trump Administration polices and undertake efforts to bolster workers’ rights.  While President Biden has made good on this assurance in several notable ways, his Administration has yet to fulfill one major campaign promise: to rescind the Trump Administration’s exemptions to the Affordable Care Act’s (ACA) contraceptive mandate, a key function of which is to prevent sex discrimination in the provision of employer-sponsored health insurance plans.  Because Trump’s religious and moral exemptions are still good law, employers have nearly free reign to exclude crucial medications — which are by definition used only by non-cis-male people — from employee insurance plans.  Given the deep inequities plaguing America’s health and economic systems, which have been exposed and exacerbated by the COVID-19 pandemic, it is more important than ever that the Biden Administration take swift action to repeal the Trump exemptions and protect employees from discrimination.   

Insurance Coverage for Contraceptives

The contraceptive mandate, promulgated pursuant to the Women’s Health Amendment of the ACA, requires that health insurance plans provide coverage for the full range of FDA-approved contraceptives without cost-sharing.  The Amendment itself was passed in response to what lawmakers viewed as widespread sex discrimination in the provision of health insurance: before the passage of the ACA, plans often provided comprehensive coverage for men’s healthcare services, while charging high co-pays and deductibles (or excluding coverage outright) for services, including contraception, used exclusively by non-cis-male people. 

While the health concerns attendant to contraceptive access are of great import, sex discrimination in health insurance also has social and economic dimensions.  As Justice O’Connor put it, “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”  Contraceptives are expensive without insurance, and studies have shown that, for many, the cost of birth control is an insurmountable barrier.

Importantly, since employers typically offer health insurance as a form of compensation for employees, the exclusion of contraception from otherwise comprehensive insurance plans translates to lower pay for non-cis-male employees.  In several pre-mandate federal lawsuits, courts held that this discrepancy in compensation constituted impermissible sex discrimination under Title VII. 

The Religious Right’s War on the Contraceptive Mandate

Soon after its enactment, the contraceptive mandate faced a series of challenges from religious employers.  The Obama Administration had tried to forestall legal controversy over the mandate by promulgating a religious exemption for houses of worship, and instituting an accommodation process for religious non-profits under which employees would still receive contraceptive coverage paid for by the insurance company itself rather than the employer.  Despite these efforts, for-profit corporations that religiously objected to certain forms of contraception on the (scientifically false) grounds that they acted as abortifacients sued, arguing that they too were entitled to an accommodation to the mandate.  In the 2014 case Burwell v. Hobby Lobby Stores, the Supreme Court ruled in these employers’ favor, holding that the Religious Freedom Restoration Act (RFRA) required an accommodation for for-profit corporations.  Notably, however, the Court also emphasized that the granted accommodation would have “precisely zero” effect on employees, since the accommodation theoretically ensured that the insurance provider would cover contraceptives where an employer would not. 

Shortly after Hobby Lobby, the Court heard Wheaton College v. Burwell, a challenge to the accommodation process itself.  Wheaton College, a religious non-profit, argued that the accommodation, which required that the objecting entity fill out a form informing its insurer and the government of its religious objection, violated its religious exercise by making it complicit in its students’ and employees’ access to contraceptives.  The Court issued an injunction in the college’s favor, but again reiterated its Hobby Lobby promise that “[n]othing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.”  Two years later, in Zubik v. Burwell, the Court heard yet another challenge to the accommodation process from religious employers.  This time, the Court remanded the case back to the lower courts, asking the religious objectors and the government to go back to the drawing board on an accommodation process that would “accommodate[] petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”

The Trump Exemptions and Little Sisters

The ensuing Trump Administration took up the issue, but rejected any effort at compromise that would have preserved employees’ access to contraception.  Instead, it scrapped the accommodation process entirely and promulgated sweeping religious and moral exemptions to the mandate.  These exemptions allow anyemployer (whether for-profit or non-profit) to deny employees insurance coverage for contraception for nearly any reason. 

Several states sued to block the rules from going into effect, arguing that the Administration had violated numerous provisions of the Administrative Procedure Act in the rules’ promulgation.  In a stunning reversal of its previous guarantee that religious exemptions to the mandate would have “precisely zero” effect on employees, the Court in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania upheld the Trump Administration’s exemptions without any mention of their detrimental impact.  When urged to recognize that upwards of 126,000 employees were set to lose insurance coverage for contraceptives as a result of the exemptions, with the greatest burden falling on women of color, the Court brushed the issue aside as a mere “policy concern.” 

Biden’s Next Move

While Little Sisters did indicate a disturbing enthusiasm among the conservative members of the Court to chip away at the contraceptive mandate by any means necessary, the decision itself was fairly narrow — the Court declined to say whether the Trump exemptions were actually required by RFRA.  Thus, the Biden Administration still has ample room to maneuver, and it should take immediate action to rescind the Trump exemptions and ensure that any accommodations do not jeopardize employee access to contraceptives.  In doing so, the Administration would be adhering to the explicit directive of the Hobby Lobby, Wheaton College, and Zubik decisions, all of which underscored that employees should not be forced to shoulder the cost of employers’ religious objections to contraception. 

If President Biden rescinds the Trump exemptions, religious employers will likely push to revisit the question left open by Little Sisters by suing on the grounds that broad exemptions are required by RFRA.  When that occurs, the strongest counterargument will be that the exclusion of contraceptive coverage from otherwise comprehensive employer-sponsored insurance plans constitutes impermissible sex discrimination under Title VII, and that the government has a compelling interest in preventing such discrimination.  Furthermore, a finding of Title VII discrimination can, in the words of Justice Alito, “exert a gravitational pull in constitutional cases.”  As I’ve argued elsewhere, a government-created or Court-mandated exemption scheme that allows employers to discriminate thus “implicates serious equal protection concerns.”  

Though he will no doubt face an uphill battle, President Biden must fulfill his promise to voters to end the damaging Trump-era contraceptive mandate exemptions.  This is a matter not just of public health, but of the basic idea that all employees should be paid equally for equal work.