AG Grewal Challenges Federal Rule Allowing Employers to Deny Women Access to No-Cost Contraception


Attorney General Gurbir S. Grewal today challenged a U.S. Department of Health and Human Services (HHS) Interim Final Rule that gives corporations the option of denying their employees access to no-cost contraception.

Grewal joined Massachusetts and other states to file an amicus brief with the U.S. Court of Appeals for the Ninth Circuit that opposes the HHS rule as “unlawful” and one that would irreparably harm not only women but the “economic and public health of states generally.”

“Once again, the federal government is trying to chip away at the health care rights of our citizens,” said Grewal. “Research shows that no-cost contraception is good for women, good for public health, and good for the economy as a whole – which is precisely why the Affordable Care Act mandated it nearly a decade ago. The federal government is now trying to undermine those protections, an effort that ultimately could deprive workers in New Jersey of access to a critical healthcare need. We believe this new rule is illegal, and we intend to fight it.”

The Affordable Care Act (ACA) requires group health plans to cover certain preventive services without cost sharing. This originally included, by regulation, all contraception approved by the federal Food and Drug Administration.

Although the ACA does not contain a “conscience clause,” HHS created an exemption for churches and their integrated auxiliaries that object to providing contraception on religious grounds. It also created an accommodation for other religious nonprofits, under which the organizations could refuse to provide contraception, but women covered by the plans would still have access to no-cost-sharing contraception.

In October, HHS issued a rule making the accommodation voluntary and expanding the exemption to include any corporation — including publicly held corporations — that objects to providing contraception coverage on any religious or moral ground. That means employers can deprive women employees of access to no-cost-sharing contraception at will.

New Jersey has its own law requiring health plans to cover contraception, but federal law preempts that law from reaching the most common employer-sponsored health plans covered by the ACA:  self-funded plans.

Nationally, self-funded plans cover just over 61 percent of people who have private sector, employer-sponsored insurance.

The Ninth Circuit is hearing an appeal by HHS, which is currently barred from implementing its new rule by virtue of an injunction entered by a California district court.

The state of California filed a federal lawsuit opposing the HHS rule – the lawsuit was joined by New York, Maryland, Delaware and Virginia – and the court issued a preliminary injunction barring its implementation.

The multi-state amicus brief filed today argues that the federal government’s action will deprive hundreds of thousands of women of needed contraceptive coverage, and will end up forcing states, including New Jersey, to expend millions of dollars in an attempt to fill the void.

“Access to contraception advances educational opportunity, workplace equality and financial empowerment for women,” the brief notes, adding that improved health for women and children and reduced healthcare costs for individuals, families and the states are further social benefits.

“Without federal support,” the brief asserts, “states cannot safeguard their residents’ access to affordable contraception.”

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