The Trump administration may weaken or eliminate the provision for full coverage of contraception in the Affordable Care Act, experts say, and it may not require any action from Republican allies in Congress.
The provision that allows women to receive full coverage for birth control — including insertion and removal of an IUD — could be eliminated or at least weakened through regulations, guidance, or law. Reproductive rights advocates are also waiting to see whether the Trump administration will continue to defend the mandate in the courts on Tuesday.
Newly minted Secretary of Health and Human Services Tom Price has a record of dismissing women’s need for full coverage of birth control. In an interview with ThinkProgress in 2012, Price said, “Bring me one woman who has been left behind. Bring me one. There’s not one … The fact of the matter is this is a trampling on religious freedom and religious liberty in this country.”
During his confirmation hearing, Sen. Patty Murray (D-WA) asked Price about his 2012 statement on birth control because her constituents say birth control without a co-pay is essential to their health care. Price refused to commit to full coverage of birth control.
“There are avenues in the heath care system that doctors and hospitals take to make sure people can get the health care they need,” Price answered.
Planned Parenthood clinics told NPR that, since the election of President Donald Trump, they have received more calls than usual from women interested in booking appointments for IUDs. An IUD is one of the most effective methods of birth control, since it is more than 99 percent effective. Without coverage provided by the mandate, a woman who works full time at minimum wage may have to pay a month’s salary for the cost of getting an IUD, according to the Guttmacher Institute.
Women who use contraceptives consistently and correctly only account for 5 percent of all unintended pregnancies. But with financial barriers to access — especially access to effective but costly methods such as IUDs — women’s ability to prevent unintended pregnancies is significantly hampered.
Action through inaction
The birth control rule has gone before the U.S. Supreme Court twice, due to objections from religious employers. The Obama administration created a process so that coverage for contraception could be provided at no cost to religious nonprofits and some for-profit employers, as long as employers filed paperwork notifying the government of their religious objections.
But some employers still objected that the process was burdensome, among other complaints. In May of last year, the U.S. Supreme Court remanded a case about exemptions for religious nonprofits, Zubik v. Burwell, so that the parties could find some approach that would be comfortable for the religious employers while allowing women to receive full health coverage, including for contraception.
In July 2016, HHS asked for public comments on alternatives that would allow women to receive full coverage and employers to have accommodations as religious nonprofits. But after over 50,000 comments were submitted, the Obama administration had to delay action to its review. For this reason, the next status reports on those comments will be due on Tuesday. The Trump administration may choose not to submit the reports, said Laurie Sobel, associate director for women’s health policy at the Kaiser Family Foundation.
“The Trump administration may not continue to litigate. It’s possible they won’t do anything on Tuesday. Not continuing to litigate could trigger a change in the rule,” Sobel said.
Death by exemption
In addition to what is happening in the courts, it is possible that an executive order could greatly expand exemptions for companies with religious or moral objections. A leaked draft of an executive order, first obtained by The Nation and Reveal earlier this month, would significantly weaken the contraception guarantee.
The order would appear to exempt any “closely held for-profit corporations” with moral or religious objections to meeting the requirements of the provision and lets them exclude coverage for contraception. Under the Obama administration’s religious accommodation, insurance companies have to provide separate coverage to women at no additional cost. Kinsey Hasstedt, senior policy manager for the Guttmacher Institute, said the draft is cause for concern, even though an official order has not been released.
“The leaked draft executive order would expand accommodations so it would be simpler for employers to reject some or all birth control options,” Hasstedt said. “It would be a dramatic expansion of exemptions.”
This draft uses broad terms to define religious freedom and requires the Department of Justice to defend “religious freedom.” It does specifically mention objections to abortion, contraception, and premarital sex, however. White House Press Secretary Sean Spicer did not deny or confirm reports about the order, The Huffington Post reported.
Republicans in Congress also seem to be readying a legislative attack on the free preventative care requirement. Rep. David Brat (R-VA) did not specifically say he would work to get rid of the mandate, but in an interview with The Hill, he dismissed the issue of full coverage of birth control by saying women could simply use health savings accounts to pay for them.
Republicans have often pointed to health savings accounts when asked how people would pay for health care currently covered by the Affordable Care Act, even though many Americans will not be able to benefit from HSAs. In 2015, researchers at George Washington University found that people with incomes over $100,000 were several times more likely to have an HSA and max out contributions compared to people from low-income households.
Rep. Phil Roe (R-TN), a former OB-GYN and co-chair of the GOP Doctors Caucus, told The Hill that “We probably wouldn’t require that, but in doing that, we need to make them behind or across the counter … In other words, you come in [to a pharmacy], you want birth control, you get it, you go.”
But for many women, cost is a barrier to accessing birth control, and making it over the counter would not change that. It would also prevent women from accessing the full options that were available to them under the ACA. Women can also not buy an IUD in a drug store, for example.
The ACA provision allows for coverage of the consultation regarding an IUD, as well as its insertion and removal. But even women who use the pill may be concerned about cost.
“For a lot of women, even the cost of $20 a month for birth control is a barrier,” Hasstedt said.