A record number of women — mostly Democrats, many of them galvanized by the threat the Trump administration poses to reproductive freedom — were swept into Congress during in the 2018 midterm elections. The results were still being tabulated on Wednesday when Trump’s Department of Health and Human Services quietly finalized two rules empowering employers, universities and nonprofits to refuse birth control coverage to women.
A third rule, also announced Wednesday, would require insurers on the Affordable Care Act marketplace to charge women a separate monthly bill for abortion coverage — a change that advocates say would be so prohibitively expensive it could force insurers to stop offering the procedure altogether.
Under the Obama administration, only certain churches and religious organizations were exempt from an ACA provision requiring employers to offer insurance plans with coverage for birth control. The new rules, set to take effect in January 2019, would make it much easier for any organization to deny coverage — all they have to do is claim they have “sincerely held religious beliefs” or “non-religious moral convictions” against birth control. The new rules make any coverage, essentially, voluntary: “Entities that object to covering some, but not all, contraceptive items would be exempt with respect to only those methods to which they object.”
There was a certain irony to the timing of HHS’s birth control announcement, just hours after Trump fired Attorney General Jeff Sessions. Sessions’ Department of Justice helped pave the way for these, and other religious refusal rules across the federal government. In October 2017, a few months after Trump issued an executive order broadening the definition of “religious liberty,” Sessions issued guidance to all federal agencies explaining how they could legally apply the new executive order.
As Dena Sher, with Americans United for the Separation of Church and State explained to Rolling Stone a few months ago, the policy ”significantly weakens the principle of church-state separation and serves as a blueprint for using religion to discriminate.”
HHS first debuted the birth control rules at that time, last October, but they fumbled the rollout, trying to rush them through without a federally mandated notice and comment period. Multiple lawsuits followed, and judges in two states issued preliminary injunctions blocking the rules. It’s unclear at this point what bearing those cases, both of which are ongoing, will have on the rules finalized Tuesday.
Advocacy groups were apoplectic about the new rules Tuesday.
“Women resoundingly rejected the Trump-Pence agenda, so Trump and Pence took direct aim at women’s health coverage for birth control and abortion,” Dawn Laguens, Planned Parenthood’s executive vice president, said in a statement. “Women will remember this attack on their basic health care.”
Rachel Laser, president of Americans United for the Separation of Church and State accused the Trump administration of “weaponizing ‘religious freedom’ to justify hurting the millions of women who depend on contraception for their health and equality.”
“The political temper tantrum would almost be laughable if the repercussions on women’s health weren’t so serious,” said Mary Alice Carter, of the HHS watchdog Equity Fwd, in a statement. “Today’s rules are further evidence that Congress must hold HHS accountable for the great harm they are causing the millions of women and men who rely on the agency’s programs.”
The new rules were announced just hours after voters in Alabama overwhelmingly approved a constitutional amendment granting full legal rights to fertilized eggs — a law so far-reaching that not only would it ban abortion in the state if Roe v. Wade is overturned, reproductive rights groups say it could ultimately mean the criminalization certain types of birth control, including IUDs and the morning after pill.