Tonight (at midnight) ends the public comment period for the Trump administration’s October 2017 rule that would give employers, health insurance providers and universities an opportunity to deny birth control insurance coverage for their employees and students. This new rule is in response to the Obama-era Affordable Care Act (ACA) provision that required health insurance plans to include coverage for FDA-approved-contraception methods with no co-pay for plan beneficiaries. This provision was a big benefit to people across the country who suddenly found their chosen contraception method more affordable, and therefore much more accessible.
From the introduction of this ACA provision, there was pushback from conservative forces, despite the fact that the original provision provided exceptions for religious institutions that did not believe in the practice of using birth control. For some employers the original exceptions were not enough, and they were able to get expansions of the ability to opt out of providing this benefit. And while it seemed like the balance between religious liberty and access to medical care had been achieved, the Trump administration, in an apparent concession to very conservative special interest groups, issued the October rule (effective immediately) that expanded the number of institutions that could claim a “religious or moral” exception to providing birth control coverage to its employees, and therefore drop it.
The Obama-era provision was a popular one in particular with low-income and young people who need to access contraception for both pregnancy prevention and other medical needs. This ruling that in effect makes it optional for many employers to offer the coverage at all has the potential to adversely impact the health and lives of many people, and can be seen as legitimizing discrimination, rather than preserving religious liberty. Despite what some suggest, this original provision is not offering “free contraception” to employees or students. All employer/university-sponsored insurance is provided in exchange for labor and/or cost-sharing (including paying partial premium costs, or tuition costs). Denying those entering into that deal the full range of benefits simply because they have uterus/ovaries is discriminatory, and will result in higher health care costs for this group.
The current Administration has suggested that this expansion of the exceptions to providing this coverage likely won’t impact that many people.
Considering that in the mid-1990s, almost half of large insurance plans in the country did not cover contraception, there is no reason to think that won’t happen again, especially if companies can claim “moral” objections that have more to do with wanting to add to their bottom financial line. And while the Administration also has said there are other places where low-income women can access affordable contraception benefits – like Medicaid and Title X programs – that is small comfort as the Administration continues to push big cuts to those programs, including efforts to defund Planned Parenthood.
In a country where 99% of American women have used some form of contraception at some point in their lives, 91% of Americans believe the use of birth control is “moral”, and more than 2/3 of Americans approved of the original ACA mandate, it seems unclear why this provision, which from the start included exceptions for religious institutions and entities, has been deemed so controversial, except that some elected officials want to use the issue to score political points with special interest groups. Unfortunately, this kind of political posturing leaves many people, women in particular, in a difficult situation. With recent debates over whether or not insurance should cover maternity care, and only 12% of working Americans having access to paid paternal leave, this debate over contraception coverage for employees seems not just a debate over religious liberty, but one of workers’ rights, and whether or not women should be in the workforce.