Trump chips away at birth control access

October 12, 2017

Christopher Baum explains how the Trump administration got away with making it even harder for women to access contraception--and further undermined Obamacare to boot.

THE TRUMP administration has carried out an attack on women's health care by issuing two regulations that allow any employer that claims a religious or moral objection to opt out of its obligations under the Affordable Care Act (ACA)'s "contraceptive mandate" that otherwise requires employers to offer access to birth control as part of employees health care plans.

Although the administration tried to argue that the overall effect of these rules will be negligible--in which case, one wonders, why bother?--the fact that an estimated 62.4 million women today receive birth control with no out-of-pocket costs as part of their health care coverage suggests the impact could be very grave indeed.

The new rules were issued jointly on October 6 by the Departments of Health and Human Services (HHS), Labor and Treasury. According to the press release issued by HHS, these regulations will "provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/abortifacient services."

Donald Trump
Donald Trump (Gage Skidmore)

Note the use of the word "abortifacient." This signals the administration's support for those who claim, with no scientific justification whatsoever, that several treatments covered by the mandate don't merely prevent pregnancy, but can actually be used to terminate one as well.

The ACA expressly excludes "drugs to cause abortion" from coverage under its mandate, but of course, this hasn't stopped anti-abortion groups from trotting out the abortifacient myth as part of their campaign to do away with reproductive health care treatments. Now, evidently, they enjoy the support of the president of the United States.

According to the HHS, the first of the two new rules states that "entities that have sincerely held religious beliefs against providing such services would no longer be required to do so,", while the second "applies the same protections to organizations and small businesses that have objections on the basis of moral conviction, which is not based in any particular religious belief."

Under the new regulations, these religious or moral objections don't need to be declared in any way. Any employer who wishes to do so is free simply to exclude contraceptive care from their employees' health care coverage--no questions asked. The same goes for religious colleges and universities that purchase insurance plans for students--and even for insurance providers themselves.

Under these new rules, far from being a "mandate," the coverage of contraception is now, in effect, optional. This integral and vital element of women's health care is now something that any employer, private college or insurance provider can simply choose to withhold at will.

THE NEW regulations also effectively spell the end of the ACA's so-called accommodation process, which was intended to ensure that even in cases where an employer objects to providing contraceptive care, employees can still receive that care, free of charge, through other means.

Under accommodation, an "entity" that objects, on religious grounds, to providing birth control coverage, files a form either with their insurance provider or (since 2014) directly with HHS. This triggers a variety of measures to make sure that, one way or another, contraceptive care is still made available, free of charge and without further complication for the patient--without any involvement on the part of the objecting employer.

The new regulations don't explicitly end the accommodation process, but they make participation entirely optional--and with an outright exemption from the mandate available to pretty much anyone who wants it, the likelihood is that few businesses, if any, would choose accommodation.

As Elizabeth Schulte wrote at in 2012, the Obama administration's proposal of the accommodation process "let religious organizations take over a debate that shouldn't even be a debate." Under the bogus pretext of preserving "religious liberty," Obama ratified the view that an employer with religious objections has the right to interfere with their employees' access to health care.

Nonetheless, under accommodation, objecting entities were at least required to give written notice of their objection to providing birth control coverage--that's what triggered the provision of contraceptive care by other means.

No notification, no trigger--which means that in addition to no longer being able to rely on their employers to provide contraceptive care coverage, women will also no longer be able to count on their insurance providers, let alone the government, taking steps to ensure they will still receive coverage.

ALL THIS has been done, we're told, in the name of "religious freedom."

This catchphrase has become so closely linked with the Religious Right that many people seem to have forgotten that the Religious Freedom Restoration Act of 1993 (RFRA)--a major weapon in the arsenal of those waging war on women's health care--was, in fact, a Democratic project, though it enjoyed not only bipartisan but very nearly universal support in Washington at the time.

The legislation was introduced into the House of Representatives by then-Congressman and current Senate Minority Leader Chuck Schumer of New York, and into the Senate by Ted Kennedy of Massachusetts. It was signed into law by President Bill Clinton.

The RFRA reinstated the so-called Sherbert test (named after the 1963 Supreme Court case in which it was introduced) which bars state and federal governments from infringing on the exercise of religion, even in the case of "neutral laws of general applicability"--that is, laws that apply equally to everyone and were not designed to impose burdens on any religious group.

There are two exceptions. First, the government must have a "compelling state interest" for the infringement, and second, the law must employ the "least restrictive means" for achieving that interest--in other words, the government must be able to show that no alternative method for achieving the desired outcome exists that would impose less of a burden on religious practice.

This isn't the place to debate the merits of this legislation. Suffice it to say that the absurd administrative and judicial contortions that the contraception mandate has been subjected to over the years--resulting in ever-greater threats to women's health care access--have been driven by the need to satisfy the "least restrictive means" criterion.

Lost in all the back-and-forth, however, was this fundamental point: There's a world of difference between the exercise of religion for oneself and its imposition on others.

If David Green, the CEO of Hobby Lobby, believes it's a sin to use birth control, no one should have the right to compel him to use it. But if he uses this belief to justify interfering in the ability of other people to use birth control, he imposing his religion on others.

That the U.S. Supreme Court and Obama administration either failed to recognize this distinction, or else cravenly sought to find some means of appeasing those who are eager to pretend the distinction doesn't exist, was bad enough.

But now the Republican reactionaries are in power in Washington, and under the pretext of preserving "religious freedom"--or, as the HHS puts it, ensuring "conscience protections"--Trump and his cronies have declared open war on the most basic reproductive health care rights of women.

A VARIETY of liberal organizations have begun legal challenges to block the new regulations. Given what's at stake, this is an important first step.

But moving the clock back to October 5, before the new rules were announced, won't protect women's health care. We will simply be back in the same precarious spot we've been in since the day the Obama administration first gave ground to the "religious" objections of bigoted and misogynistic opponents of access to birth control.

We have to organize to roll back Trump's legislative and executive horrors in the here and now, but we also need to go beyond the limited and deeply flawed coverage offered under Obamacare.

We should demand full access to reproductive health care--including abortion on demand--for all women, regardless of where they work or who they work for. This isn't some special add-on that can be offered or withheld at the will of an insurance provider. Full access to reproductive care is fundamental to women's health and autonomy. Our demand for this access must be non-negotiable.

This is a crucial battlefield in the struggle for universal and comprehensive health care, and the Obamacare status quo isn't good enough. We need to keep up the fight for truly universal, truly comprehensive health care coverage, including full access to reproductive care, for all people.

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