Last week the Trump Administration released two new rules to dismantle the Affordable Care Act (ACA)’s contraception coverage, effective immediately. Unless the courts stop them, millions of employers will have the right to deny their employees birth control coverage for any reason—or no reason at all.
What has the contraceptive coverage rule meant for women and their families? Under Obama-era regulations implementing the ACA, 62.4 million women have insurance coverage for their birth control free from out-of-pocket costs. Before passage of the ACA, 1 out of every 4 women with insurance through her employer had to pay out-of-pocket costs for birth control pills; by 2014 that number had fallen to just 1 out of every 28 women thanks to the ACA! And in just one year, women saved $1.4 billions in co-pays and deductibles on birth control pills alone. That’s probably why the provision is so popular, with over 77% of women and 64% of men supporting coverage.
I thought we stopped Congress from repealing the ACA. Why is contraceptive coverage under attack? While Congress wrote some women’s preventive health protections into the ACA itself, the law expanded coverage for additional measures by tasking the Department of Health and Human Services (HHS) to draw up a list of “preventive care and screenings not described” elsewhere in the bill. Under the Obama Administration, HHS issued a list of preventive measures that included contraceptive counseling and all 18 FDA-approved contraceptive methods.
But the story didn’t end there. In response to objections from some religiously affiliated employers, the Obama Administration issued an “accommodation” for non-profits and later, closely-held for-profits, who object to contraception on religious grounds. While not ideal, the accommodation was a compromise that gave women access to seamless birth control coverage at no cost while also allowing employers with religious objections to avoid paying for it themselves. Fights over the accommodation famously played out over the course of two Supreme Court battles with some religiously affiliated employers demanding the right to block their employees from getting contraceptive coverage at all, imposing their religious beliefs on their employees. With a 4-4 tie last year, the Supreme Court never settled the second case; instead it punted back to the lower courts in the hopes that the issue would magically go away.
With its new rules, the Trump Administration has gutted the contraception mandate, giving religious employers the power to dictate their employees’ health coverage. Instead of an accommodation that protects employers’ religious views and women’s access to vital health care, the new rules simply allow most employers to strip birth control coverage from their employees for religious reasons or for “moral objections”—which can mean no reason at all.
Wait, why did the administration issue two separate rules? While the 1993 Religious Freedom Restoration Act serves as the basis for right-wing objections based on “sincerely held religious beliefs”—the crux of those two Supreme Court cases—there is no legal basis for broadening that standard to include “moral objections.” The first rule expands the ability of nearly any employer to block their employees from getting coverage by claiming a religious objection. The second rule gives non-profit and closely-held for-profit companies the right to drop contraceptive coverage based on “moral objections,” which can be anything at all. In doing so, the Trump Administration is creating a new standard, seemingly out of whole cloth. Furthermore, by issuing the rules as “interim final rules,” which are effective immediately, even before the public has had a chance to weigh in, there’s a strong legal case to be made that the administration is breaking the law.
It’s possible and perhaps likely that the courts could block the rule from taking effect, particularly while HHS conducts its planned after-the-fact comment period through the December 5. But while legal challenges make their way through the courts, women’s coverage is at risk now.
What can we do to fight back? Already, several of our allies have filed lawsuits challenging the new rules, and more court challenges are likely. What else? We can call on employers to stand up for their employees and publicly declare they will continue to provide contraceptive coverage. Those of us who are employees can demand that our employers publicly affirm they will continue contraceptive coverage. We can all call out the Trump Administration on social media, using the hashtag #HandsOffMyBC. And we can call our members of Congress! Congress has the power to write protections for birth control coverage into law and we have the power to hold them accountable if they don’t stand up for us. We must speak up!