Tim Gruver | University of Washington
The rule allows any employer to stop covering birth control on the basis of religious or moral objections — effective immediately.
The right to moral objection does not appear to include individuals with a womb, though.
Currently, the Affordable Care Act requires employers to provide contraceptive coverage. The rule also allows individual people to object to participating in an employer plan that covers birth control.
The Affordable Care Act mandates that health insurance cover preventive services for women without co-pays or coinsurance — insurance which requires the insured to pay a share of the payment made against a claim. Contrary to popular belief, houses of worship are exempt from the rule under the Affordable Care Act, but a variety of groups — nonprofits, hospitals, and universities — have challenged the law on religious grounds to no end.
After the craft store Hobby Lobby sued the federal government and the Supreme Court ruled in its favor — “closely held” businesses could opt out of covering contraceptives and instead shift the full cost to the health insurer.
Other religious groups, like the Little Sisters of the Poor, argued that signing the form made them complicit in the provision of birth control. This new rule by the Trump administration would allow any employer, including for-profit companies, to stop covering birth control. Period. Under this situation, women may very well have to pay for the cost of their prescription out of pocket.
The independent Institute of Medicine concluded that birth control was one of the services worth covering. The free provision applies to all FDA-approved contraceptive methods, from the pill to the IUD, and sterilization for women as of August 2012. Employers who want an immediate exemption would have to notify their employees. If they want to change it starting in 2018 they simply need to include it in the summary of benefit changes from the health insurance provider. The measure is one of more than 300 restrictions state legislators have placed on abortion providers across the country over the last decade.
Now, it is harder than ever to keep a clinic open. In seven states, there is only one abortion provider left. The rule, in no unclear terms, deliberately discriminates against women by writing their employers a black check to withhold a benefit guaranteed by law — and on religious grounds. Such an act is not only a gross violation of the separation of church and state, but the very concept of freedom of religion.
Religious freedom is the right to believe or not, worship or not, as you see fit. It is never the right to use the government to impose the costs, burdens, and harms of your beliefs on other people. The First Amendment protects against such an overstep of power and does not grant the government the right to override that by any regulation. Everyone has the right to practice their religion. They do not have the right to practice it on someone else.
If nothing else, the rule posted by the Trump administration, effective immediately, violates the 60-day public comment period as required by the Administrative Procedure Act which applies to any rule posted by the executive branch. The Trump administration will accept comments until December 5.
And just what the Trump administration means by a "moral" objection is unclear. There is also no statutory authority for a moral exemption and the Religious Freedom Restoration Act does not provide protection for moral and conscientious objections.
In times past, religious groups have argued that life begins at conception and, by extension, refuse to provide any obstacle standing between a sperm cell and a fertilized egg. By contrast, the American Congress of Obstetricians and Gynecologists considers implantation to be the start of pregnancy — when a fertilized egg attaches to the interior lining of the uterus to begin the growth process — not fertilization.
A number of states have moved to ratify the Affordable Care Act’s birth-control mandate into state law, but they hardly amount to a majority of the country. California was the first state to pass a law protecting free birth control in 2014 and Illinois, Vermont, Maryland, Nevada, Maine, Hawaii, and Oregon have adopted similar contraceptive equity laws. Massachusetts lawmakers are working to pass a similar bill. Though this rule cannot affect the laws that exist in many states that require contraception coverage, that does not mean that it is acceptable for the federal government to be giving this license to discriminate.
The document says it will not affect other birth control subsidies in addition to free federal, state, and local programs for low-income women. These include Medicaid, Title X, community health center grants, and Temporary Assistance for Needy Families. The problem? The Trump administration has proposed slashing all of the above.
As Health and Human Services continues its attempts to gut Medicaid, the Teen Pregnancy Prevention Program, Title X, and Planned Parenthood, the Trump administration offers nothing to those most in need of reproductive healthcare.
As the ACLU, the Center for Reproductive Rights, and the National Women's Law Center, among others, ready to challenge the rule, women across this country will endure what has been considered the unthinkable in past generations.
As long as this rule is in effect, women's healthcare will be dictated by where they live, who they work for, and what they do. Abortions will become the only viable option for increasingly desperate young women who cannot afford the physical, emotional, or financial costs of motherhood — and under more costly and dangerous conditions should Roe V. Wade be overturned.
That President Donald J. Trump should offer nothing but contempt and disregard for the Constitution should come as no surprise. This is a man who accused Mexicans of being rapists, failed to condemn white supremacists, and bragged about grabbing women’s genitals.
And he just happens to govern a country in which tampons are taxed in 39 states while viagra is taxed only in Illinois. We may not be able to expect anything less than the unbridled misogyny the Trump White House has invoked in the past nine months.
We can only expect more of ourselves and others to forever question a world in which men are free and women are not.
Sources: “Religious Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care Act”: https://www.federalregister.gov/documents/2017/10/13/2017-21856/religious-exemptions-and-accommodations-for-coverage-of-certain-preventive-services-under-the Institute of Medicine, Women’s Preventive Services: https://www.hrsa.gov/womens-guidelines/index.html FDA Birth control guide: https://www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM517406.pdf Administrative Procedure Act: https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf States requiring contraception coverage: https://rewire.news/article/2017/07/12/states-moving-protect-birth-control-access-congress-debates-aca-repeal/ American Congress of Obstetricians and Gynecologists 2014 report: https://www.acog.org/-/media/Departments/Government-Relations-and-Outreach/FactsAreImportantEC.pdf