The Trump administration could soon give nearly all employers the ability to request an exemption to the birth control coverage mandate by citing religious or moral reasons, according to a leaked draft of the new rule obtained by Vox.
“The extent that they’ve expanded the exception is pretty shocking,” Mara Gandal-Powers, Senior Counsel for the National Women’s Law Center (NWLC), told ThinkProgress. “They’ve really opened the door to countless numbers of women having birth control exempted from their insurance coverage.”
The rule is the fulfillment of an executive order on religious freedom President Donald Trump handed down in early May. Standing in the White House’s Rose Garden, Trump promised faith groups that their “long ordeal” — namely, their objections to having to participate in birth control coverage for their employees — would “soon be over.”
The move was immediately applauded by Secretary of Health and Human Services Tom Price, whose agency has control over the rules governing the birth control mandate and who has long been a vocal opponent of the contraception mandate.
According to the Office of Management and Budget, the agency is now reviewing the “interim final rule,” which is a final step before the rule is implemented. When it is published, it would immediately affect policy and could have an instantaneous effect on women’s birth control copay. The draft obtained by Vox is dated May 23rd, and it’s unclear if there have been revisions to the language.
As it stands, it’s a stark statement of the Trump administration’s priorities when it comes to women’s health.
“It’s really disturbing that this is their vision of what birth control coverage should look like,” said Gandal-Powers. “In their own words, from the preamble, they reweighed the government’s interests and they think that, on the balance, making sure women have access to birth control is outweighed by people’s religious objections.”
Under the language of the leaked draft, nearly any type of non-governmental organization could request an exception to providing birth control coverage — including small businesses, large, publicly traded companies, and universities that provide health insurance for their students. The rule would also allow employers to object on moral as well as religious grounds, though it doesn’t define what a “moral” objection might look like.
And for women who lose their birth control coverage due to their employer’s beliefs, the rule offers little comfort. As an alternative source of affordable contraceptive care for women who lose their coverage, it points to Medicaid and Title X programs, which help low-income women afford birth control. The House version of Trump’s health care bill cuts $880,000 billion from Medicaid; earlier this year Trump signed a bill allowing states to deny Title X funding to women’s health clinics that provide legal abortions.
“We know that they don’t support Title X or Medicaid. Their alternatives are things that they’re trying to gut.” said Gandal-Powers. “So they say they’re providing an alternative that they are meanwhile trying to destroy.”
Before rules implemented under President Obama mandated that birth control be covered, more than 20 percent of US women had to pay money out of pocket for oral contraceptives, according to the Kaiser Family Foundation. According to a recent survey from PerryUndem, 33 percent of women said they couldn’t afford to pay more than $10 for birth control, and 14 percent said they couldn’t afford to pay anything at all.
Because the mandate applies to a wide swath of contraceptive methods — including long-acting devices like IUDs, which can be expensive up front — it also made new types of birth control accessible to a wider swath of American women, and ensured that women could make contraceptive decisions based on medical, and not financial, considerations.
In 2013 alone, the mandate saved women $1.4 billion on birth control, and since it went into effect, there has been a nearly 5 percent uptick in birth control prescriptions, according to the NWLC.
The birth control mandate has also corresponded with a steep drop in rates of unintended pregnancy and abortion rates, which are currently at their lowest rate in decades. Researchers attribute the drop to more women having access to contraceptives, and to more women being able to choose highly effective, long-active devices like IUDs.
But while over 70 percent of the public supports mandating coverage of the full cost of birth control for women, some religious groups have staunchly objected to the requirement that they cover methods of birth control for their employees.
The law already contained carve-outs for some religious objectors: Houses of worship were exempted from the mandate completely, and the law also allowed some other non-profit employers to opt out of directly providing the contraceptive coverage. If they wanted an exemption they would have to notify the government, and then their insurer would be required to step in and pay for the coverage.
Some organizations, however, objected to even this — saying that even filing the paperwork was an affirmative action tacitly endorsing their employees’ contraception. And, in 2014, the Supreme Court ruled in Hobby Lobby vs. Sibelius that “closely-held” for-profit organizations owned or managed by individuals with religious exceptions could also reject the requirement on religious grounds.
“It’s really disturbing that this is their vision of what birth control coverage should look like.”
The dramatic expansion of the rule, however, would allow an indeterminate swath of employers to seek exceptions for providing their employees birth control coverage. It would not require them to notify the government, and offers little if any recourse for women who then find themselves unable to pay.
“This rule would mean women across the country could be denied insurance coverage for birth control on a whim from their employer or university,” Dana Singiser, Vice President of Public Policy at Planned Parenthood said in a statement. “Think about it: Under this rule, bosses would be able to impose their personal beliefs on their female employees’ private medical decisions.”
While the rule will go into effect immediately when published, the public will have 60 days to comment. Based on the birth control mandate’s popularity, women’s rights groups anticipate a large backlash to the administration.
The rule will also likely face legal challenges: According to Gandal-Powers, the NWLC is considering litigation, which could have some impact on the final shape of the birth control mandate.
If the bill goes into effect as is, employers would be able to immediately stop covering contraceptive care for their employees, as long as they sent notice to their employees. If they decided to stop providing contraceptive care at the beginning of next year of their health care plan, the change would be noted only through the usual summary of benefit changes.