Whether GOP senators will be able to moderate the reductions in healthcare assistance using at least $100 billion in budget savings — without raising the deficit — remains unclear. (May 9, 2017) (Sign up for our free video newsletter)
On May 4, President Donald Trump invited to the White House representatives of the Little Sisters of the Poor, the religious order at the center of litigation over the Affordable Care Act's contraception coverage mandate, to witness the signing of an executive order he promised would end "the attacks on your religious liberty." But the regulations his Department of Health and Human Services are now contemplating to put that order into action go far beyond addressing the minute burden the Little Sisters actually faced under the ACA. Rather, they call into question the very idea that contraception should be viewed as basic, preventive health care and could undermine access for women far beyond those who work for religious non-profits like the Little Sisters.
The ACA requires health insurance plans to cover a set of preventive services at no cost to the consumer, but some details about which services would be included were left up to the regulatory process. Following recommendations in an independent Institute of Medicine report, the administration included coverage for all FDA-approved contraception methods for women of childbearing age. Churches were exempt from the start if they objected on religious grounds. Following a 2014 Supreme Court ruling, certain closely-held, for-profit corporations were also exempted from the rule.
And in another category are organizations like the Little Sisters — religious-based non-profits that don't primarily employ or serve members of the faith. The Obama administration developed a work-around for them in which they would not provide or pay for the contraceptive coverage, but the insurers in their health plans would do so with other funds. All they had to do was fill out a form stating, "on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization." But the Little Sisters and some others consider even this an imposition on their religious beliefs.
Of course, it's not. Rather, their stance amounts to an imposition of religious beliefs on employees who may or may not share them, and it makes as much sense as allowing them to dictate that their workers could not spend their salary — a form of compensation just as health insurance is — on birth control pills. Nonetheless, the controversy has not gone away, and Mr. Trump, as a candidate, promised to make sure organizations like the Little Sisters would no longer be "bullied" by the federal government.
But the step he is proposing would have effects far beyond faith-based non-profits. According to a draft regulation obtained by Vox.com, the Trump administration is considering expanding the exemption from the rule to any business that wants it — whether a small non-profit or a huge, publicly traded company — for any moral or religious reason it cites. Such companies would no longer even have to notify the federal government.
What this move reflects, more than the state desire to expand religious freedom, is a view that contraceptive coverage isn't really crucial preventive health care. The draft regulation quotes from the lone dissent to the original IOM recommendation questioning its basis as "a mix of objective and subjective determinations filtered through a lens of advocacy." It questions the degree to which ensuring universal, cost-free access to contraception furthers a compelling interest and notes that Congress did not specifically include it in the ACA. The administration has "concluded that the governmental interest in ensuring that the employees of [objecting] organizations receive contraceptive coverage as part of their employer-sponsored health plan is less significant than previously stated," the draft regulation says.
But the evidence from the few years in which contraceptive coverage has been required shows that it has been strikingly effective not just at reducing costs for women but also at expanding the use of the most effective forms of birth control. According to the Guttmacher Institute, the proportion of privately insured women who paid nothing for oral contraceptives quadrupled. Studies of claims data found that once costs were eliminated, women were more likely to continue taking the pill and were more likely to choose long-acting birth control methods. Previous studies of programs to provide no-cost contraception available showed significant declines in abortions and unplanned pregnancies. If the Trump administration guts the rule, coverage will vary widely based on state laws and employer policies with the result that "for some women, their choices will be limited, and some of the most effective and costly methods will be out of financial reach," according to the Kaiser Family Foundation.
Those with religious objections to contraceptives are free not to use them or pay for others to do so. But they are not free to make those decisions for their employees. The Obama administration found a compromise that fostered the government's compelling interest to make contraceptives widely available at no cost while imposing virtually no burden on objecting organizations and employers. The Trump administration should let it stand.