On Wednesday, Vox published a leaked draft of the regulation the Trump administration plans to use to gut the Obamacare contraception mandate – that is, the rule currently ensuring that most women's insurance covers contraception without a copay.
Put simply, the Trump administration is planning to make it more difficult for women to use the insurance they earn and pay for to afford birth control pills, IUDs and other forms of contraception. In 2017. In America.
The administration's plans fly in the face of public opinion, not to mention common sense and decency. The Obamacare mandate is supported by 71 percent of Americans, has caused out-of-pocket costs for contraception to plummet and has coincided with an acceleration in the decline in the abortion rate.
Still, contraception opponents who claim the rule infringes on their religious freedom have fought it for years, and the Obama administration bent over backwards to try to appease them. But what Trump's leaked rule shows is that opponents' ultimate goal was never to win exemptions from the law for religious groups – it was to block the government from expanding access to contraception altogether by freeing all corporations, no matter how secular, from requirements to provide equitable health coverage to women.
The long, often mind-boggling, battle over the Obamacare mandate is worth revisiting, to illustrate how we ended up here.
The first version of the rule exempted houses of worship from providing health plans that cover contraception. This was based on a "church autonomy" rationale – the idea being that someone who works for a church likely shares its beliefs and has consented to religious governance, voluntarily forgoing the protections employees enjoy under generally applicable law.
But the exemption for churches wasn't good enough for contraception opponents. They insisted religiously affiliated groups like universities and hospitals should also be exempt. The problem with that idea is obvious: Accepting a job at a university, hospital or social service organization is not at all like joining a church. Despite the prevalent stereotyping of religiously affiliated institutions as places where one should expect bishops or other religious authorities to make the rules, they are in fact able to recruit employees and receive government funding precisely because they present themselves as largely secular institutions that are welcoming to people of all or no faiths.
So there's no church autonomy rationale when it comes to these institutions, but the Obama administration came up with an accommodation to try and make them happy anyway – while still ensuring that women's health care services would be covered, as men's are. The workaround allows such institutions to opt out of providing contraceptive coverage by sending a two-page form to their health insurers self-certifying that they have a religious objection to insurance that covers birth control. The third-party insurer is then obligated to provide separate coverage to the employee, for which it is reimbursed by the government. Women get their birth control but not through the health plans of the religiously affiliated non-profits they work for. Everybody wins, right?
Nope. The Obama administration made the mistake of thinking the objectors were negotiating in good faith for a religious accommodation – when their real goal was to torpedo expanded access to contraception altogether. The attempts to appease the objectors came back to bite the administration in an unprecedented litigation campaign led by right-wing Christian legal groups like the Alliance Defending Freedom and the Beckett Fund that involved more than 100 lawsuits. Secular for-profit corporations like Hobby Lobby sued to be given the same accommodation as religiously affiliated non-profits, and won at the Supreme Court. The non-profits also sued, claiming that filling out the form to get the accommodation – literally just filling out a form – violated their rights under the Religious Freedom Restoration Act since their employees would still end up getting contraceptive coverage in the end.
The Supreme Court wasn't willing to go so far as to allow employers to block their employees from getting coverage from a third party through the government's workaround. But the administration that Trump has filled with some of the nation's premiere anti-contraception zealots is poised to give the objectors what the courts wouldn't. When the coverage rule was first proposed, Cardinal Timothy Dolan explained the only outcome he would accept: "All Washington has to do is say, 'Any entity that finds these mandates morally objectionable is not coerced to do them,' and leave it there."
Laws do not generally work this way – you don't get to only follow the ones you agree with. But that's precisely what Trump's contraceptive regulation would do. Any employer that decides it has a religious or moral objection would be able to prevent its employees from obtaining contraceptive coverage – even employees currently receiving it through a third party. It's an exemption that swallows the whole rule.
This is an example of a larger strategy by right-wing religious groups to attack legal protections that should be applied generally under the guise of "religious exemption." For example, they've claimed that laws protecting the rights of LGBTQ people to adopt children violate religious organizations' rights, only to admit they're really objecting to any kind of organization having to abide by anti-discrimination laws.
These religious warriors against anti-discrimination laws will surely be emboldened if Trump implements the new regulation as written. However, women should not assume they are no longer entitled to contraceptive coverage. Despite the Hobby Lobby decision, most women – including those who work for religiously affiliated institutions – are currently entitled to birth control without a copay via the workaround. So this is a good time to get one's birth control situation sorted out, before the Trump administration issues the new rule or otherwise dismantles Obamacare. In particular, women interested in long-acting removable birth control (like an IUD), which is more effective – and more expensive – than birth control pills, should take action pronto.
But even if the new rule goes into effect, don't assume coverage is gone. Obamacare has strengthened the norms around birth control coverage, and we can expect most plans to voluntarily continue covering it. Furthermore, there is reason to believe the Trump rule won't survive court review. It doesn't comply with procedural requirements for issuing new rules – and, worse, it's discriminatory. So as with many of Trump's legally dubious policies, expect it to be tied up in court for a long time.