The New Birth Control Rule Is All Kinds of Illegal
"Everyone has the right to practice their religion but they don’t have the right to practice it on someone else."
Pool/Getty; Vice Media
Today, the Trump administration posted a rule that allows any employer to stop covering birth control if they have religious or moral objections—effective immediately. The rule also allows individual people to object to participating in an employer plan that covers birth control. The administration argues that this move is needed to protect religious freedom, but legal experts and women's health groups vociferously disagree and argue that it is illegal on multiple fronts.
Quick reminder about the existing rules: The Affordable Care Act mandates that health insurance cover preventive services for women without co-pays or coinsurance; the independent Institute of Medicine (IOM) determined that birth control was one of the services worth covering. The no-cost provision applies to all FDA-approved contraceptive methods, from the pill to the IUD, and sterilization for women. This mandate has been in effect since August 2012.
Houses of worship were always exempt from the rule but other groups, including religious nonprofits, hospitals, and universities, have challenged the law. After the craft store Hobby Lobby sued the government and the Supreme Court ruled in its favor, so-called "closely held" businesses were able to opt out of covering contraceptives and instead shift the full cost to the health insurer. But they had to file paperwork for that to happen and some groups, like the Little Sisters of the Poor, argued that signing the form made them complicit in the provision of birth control.
The rule posted to the Federal Register today would allow any employer, including large, for-profit companies, to stop covering birth control altogether. We're not just talking about the return of co-pays; it's possible that women would have to pay the entire cost of their prescription out of pocket. The document itself says: "These final rules will result in some enrollees in plans of exempt entities not receiving coverage or payments for contraceptive services." 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.
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A spokesperson for the Department of Health and Human Services told Vice News: "No American should be forced to violate his or her own conscience in order to abide by the laws and regulations governing our healthcare system. Today's actions affirm the Trump Administration's commitment to upholding the freedoms afforded all Americans under our Constitution."
But "all Americans" apparently doesn't include those who can get pregnant. Brigitte Amiri, senior staff attorney at the American Civil Liberties Union, said in a phone call with reporters today that the rule (which is really two separate rules for religious and moral objections) is "blatantly unconstitutional," adding, "they both violate the separation of church and state and also discriminate against women by allowing their employers to have a license to withhold a benefit that is guaranteed by law, based on their religious or moral beliefs."
During the call, the following groups all said they planned to file lawsuits challenging the rule as early as today: the ACLU, the Center for Reproductive Rights, the National Women's Law Center, the Americans United for Separation of Church and State, and the California attorney general.
The religious freedom argument is a flawed one, according to Richard Katskee, legal director of Americans United for Separation of Church and State. "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," Katskee says. "Our First Amendment protects against that and the government doesn't have the right to override that by regulation."
As California Attorney General Xavier Becerra put it, "Everyone has the right to practice their religion but they don't have the right to practice it on someone else."
The Trump administration may also be in hot water for issuing what's known as an interim final rule, which goes into effect immediately, rather than after a 60-day public comment period as required by the Administrative Procedure Act (APA). The document notes that "the Departments have determined that it would be impracticable and contrary to the public interest to delay putting these provisions in place until a full public notice-and-comment process is completed." Still, the Trump administration will accept comments until December 5.
"That is part of the major concern with this rule, that they didn't take the appropriate steps under the APA," says Fatima Goss Graves, president and CEO of the National Women's Law Center. Amiri added: "Both rules are being rammed through on an emergency basis where there is absolutely no emergency."
There is also vagueness about what the administration means by a "moral" objection. In the past, religious groups have argued that life begins at conception, so they don't want to cover IUDs and emergency contraception like Plan B since those birth-control methods can prevent a fertilized egg from implanting in the uterus. (Doctors consider implantation, not fertilization, to be the start of pregnancy.)
So is a moral objection something like a conservative employer not wanting unmarried women to have birth control because they disagree with sex outside of wedlock? We don't know, Goss Graves says. "Is it an attack on single parents? Is it an attack on pregnancy more generally? Is it an attack on the very idea about where women should work and how they should work? We have no idea what they mean by 'moral' and it's disturbing that they would take this step, move directly in opposition of what the Supreme Court has already said they had to do, which was ensure that women get the coverage that they need and that you could do so while protecting religious liberties," she says.
Katskee adds, "There's no statutory authority for anything like the moral exemption, which is another problem." The Religious Freedom Restoration Act does not provide protection for moral and conscientious objections.
As long as this rule is in effect, it means that women's healthcare can be dictated by where they live. Multiple states have moved to codify Obamacare's birth-control mandate but there are many others without a law on the books that would be affected. California was the first state to pass a law ensuring free birth control in 2014, and now Illinois, Vermont, Maryland, Nevada, Maine, Hawaii, and Oregon have adopted similar contraceptive equity laws. Massachusetts is working to pass a bill right now. New York was also considering a bill but it died in the state senate in June.
"Even though this rule can't affect the laws that exist in many states that require contraception coverage, that doesn't mean that it's acceptable for the federal government to be giving this license to discriminate," says Amiri of the ACLU.
The document says it doesn't affect the many other ways that women can get subsidized birth control:
Moreover, there are multiple Federal, State, and local programs that provide free or subsidized contraceptives for low-income women. Such Federal programs include, among others, Medicaid (with a 90 percent Federal match for family planning services), Title X, community health center grants, and Temporary Assistance for Needy Families.
Except, of course, the Trump administration has proposed slashing most of those and more, says Dana Singiser, vice president of public policy and government affairs at the Planned Parenthood Federation of America. "Some of the very programs that the Trump HHS has cited that could possibly fill the void created by these rules are the very ones that they are systematically attacking," she says. "That is everything from their various efforts to gut the Medicaid program, to eliminate the Teen Pregnancy Prevention Program, to eliminate Title X, and, of course, to defund Planned Parenthood.
"The numbers about where else women might be able to receive birth control at no copay, those are simply magical numbers that can't paper over how egregious this assault on women's health is."
Update 12/21/17: Federal judges in Pennsylvania and California issued preliminary injunctions that temporarily blocked the rule from going into effect. The administration is expected to appeal the ruling.