The Trump administration may be bogged down in the legislative trenches, but on the regulatory front, it is a rolling juggernaut, killing or maiming Obama regulations almost at will.
This month, in the name of religious freedom, the Department of Health and Human Services (HHS) issued new rules to rein in the Affordable Care Act’s “contraceptive mandate.” While they stop short of a full repeal, they make it a lot easier for employers to deny birth control coverage to employees.
The “mandate” stems from an Obama-era ruling that contraception should be classified, for purposes of the ACA, as “preventive” and that private insurers should be required to cover 18 forms of it without any requirement of a co-pay. The intention was to improve reproductive health options, particularly for low-income women who might otherwise be unable to afford a preferred contraceptive option, such as an IUD or a long-term injectable.
The savings can be substantial to the 55 million women covered as a result of the ACA’s mandate. According to the National Women’s Law Center, the mandate saved women an estimated $1.4 billion in oral contraceptive costs in 2013.
From a public policy standpoint, the mandate makes enormous sense, as it improves the reproductive health of women while also reducing heath care costs attributable to unwanted pregnancies. There was a time when such a policy extension would have been hailed as an advance by both sides of the aisle.
These are not normal times. Bipartisan support for family planning is at a new low. Only a handful of congressional Republicans are now willing to fight for improved access to birth control, and social conservatives, under the banner of religious freedom, are waging an unrelenting attack on the mandate. Unable to repeal the ACA legislatively, they have sought to repeal its mandate by regulatory and judicial avenues.
In 2014, the U.S. Supreme Court ruled in Burwell v. Hobby Lobby that the ACA’s contraceptive mandate violated the Religious Freedom Restoration Act (RFRA) of 1993, as it applied to a closely-held corporation with religious objections. The ruling, however, did not apply to large, publicly-held corporations.
Social conservatives have pushed for a much broader exemption, one that would give virtually all employers the option of dropping coverage. In response to that demand, the Trump administration has proposed two new rules. Under the new rulings publicly held corporations, as well as universities and colleges, could suspend contraceptive coverage citing religious or “moral” convictions. Importantly, objecting employers and insurers would not need to notify the government.
No one knows how many employers and insurers would take advantage of the broader exemption, but hundreds of thousands of employees could easily lose their coverage. Social conservatives will hail the changes as a great victory, but for a woman earning the minimum wage and working for a major corporation with “moral objections,” it will be a loss that could easily result in an unplanned pregnancy and, potentially, an abortion. What kind of victory, moral or otherwise, is that?
The rules are part of a broader campaign aimed at limiting a woman’s access to contraception. A new report (“Senseless: the War on Birth Control”) released by my organization, the Population Institute, documents how birth control opponents are mobilizing on many fronts to roll back access to contraception.
The Trump administration has already suspended U.S. support for the United Nations Population Fund, cutting off access to contraception for millions of women in the developing world, including those living in refugee camps.
The administration has also revived Reagan’s Mexico City Policy, otherwise known as the “global gag rule.” Although aimed at shutting off USAID funding to overseas family planning organizations that “advocate” for safe abortions, the real world effect will be less contraception, more unwanted pregnancies and more abortions. The Trump administration, however, wants to eliminate all U.S. support for family planning programs overseas. To be clear, this is not a campaign aimed at curbing abortions; it is aimed at preventing poor women in developing countries from deciding for themselves how many children to have and when.
The House of Representatives recently voted to eliminate all funding for Title X, the federal program that supports family planning clinics serving low-income women in this country. That program, which was signed into law by President Nixon in 1970, has served tens of millions of women in its nearly 50-year history. And it has done so, until recently, with broad bipartisan support. Not anymore.
From a political perspective the war on birth control is highly unpopular, and from any kind of human or public policy perspective, it is utterly senseless. And yet it persists. How many more women will have to suffer before it ends?
Robert Walker is the president of the Population Institute (firstname.lastname@example.org), a Washington-based organization promoting family planning and the reproductive health of women at home and abroad.