In 2014, women’s health advocates despaired when the Supreme Court ruled 5-4 that “closely-held corporations” like Hobby Lobby could use the religious beliefs of the individuals in charge to strike birth control coverage from employee health plans. In her famously fiery 35-page dissent in Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg warned that the ruling, a “radical” repurposing of a law originally designed to preserve religious freedom, would introduce “havoc.”
When Justice Ginsburg wrote her dissent, nobody except maybe Donald Trump believed that Donald Trump would successfully run for President two years later. Nobody could have predicted that Trump would turn to his daughter, a glorified shoe saleswoman and aspirant lifestyle brand maven, to advise him on issues facing women and girls. Nobody could have guessed that President Trump would appoint conservative Georgia Congressman Tom Price, then a vocal champion of the Hobby Lobby ruling and unlikely ally to a famously immoral New York City land developer, to run the Department of Health and Human Services. But back in 2014, Justice Ginsburg did correctly predict one thing about the endlessly unfolding hell that is the political news cycle in 2017: this is getting very messy, very fast.
Obamacare’s contraception mandate, which requires employer-provided insurance to cover certain preventive services for women without requiring patients to pay out of pocket, has been fodder for intense debate since its inception. Religious conservatives claim its requirements violate the Religious Freedom Restoration Act. Liberals claim that failing to cover birth control constitutes discrimination. Libertarians hate rules in general. And Democratic Socialists think employer-sponsored insurance plans should be tossed in favor of Medicare for All.
Since November, policy nerds and women’s health advocates have wondered how Trump’s long-promised rollback of the Affordable Care Act’s contraceptive mandate will look. Today, we got a sneak peak.
The draft of the rule, obtained by Vox’s Sarah Kliff and Dylan Scott, would allow any employer or university to opt out of providing birth control to their employees or students by citing religious objection. The rule only applies to religious and morality-based objections to female contraception. It does not apply to other things a religion may find morally objectionable, like psychiatric drugs, blood transfusions, or Viagra. In addition, the rule would not require an employer to formally register their objection with the government before ending contraception coverage. Employers would be required to notify employees in advance of the change, but once the policy change was in effect, women would not be able to use their workplace insurance policies to pay for contraception. Even if was prescribed for reasons apart from prevention of pregnancy.
As we noted last week, once the Office of Budget Management approves the final version of the rule and posts it to the Federal Register, the regulation will go into effect.
Some women’s health advocates that spoke with The Daily Beast were surprised and dismayed by the scope of the drafted rule. Previous speculative chatter seemed to settle on a consensus that the rule would likely only apply to religious employers like Catholic hospitals or religious universities. This draft would allow any boss or school administrator to eliminate birth control coverage for religious or moral reasons. If enacted, this rule could affect any woman with a job.
Washington Senator Patty Murray, ranking member of the Senate’s Health, Education, Labor, and Pensions committee, issued a swift response to the leak. “By allowing employers to deny women affordable birth control, President Trump is telling women their health and economic security do not matter,” she said.
New York City First Lady Chirlane McCray also released a statement, saying, “Rolling back coverage for contraception puts women and families at risk to score points with men who are not listening and don't understand the challenges that millions of women face.”
Planned Parenthood, EMILY’s List, Physicians for Reproductive Health, and a litany of other pro-choice organizations condemned the draft as-written.
But apart from finger-wagging and statement-issuing, there’s not much advocates can do to prevent this from going into effect as-is. What can stop the rule from being in effect for long is a legal response.
“This is a draft, so we need to wait to see what the final form is before deciding what action to take, Brigitte Amiri, senior staff attorney at the ACLU, tells The Daily Beast. “But if the rule is enacted as written, we will be filing a lawsuit.”
“The Supreme Court has said that where the government favors religion to the detriment of others and imposes harm on third parties, in this case women, it violates the constitution,” Amiri adds.
“We are prepared to file a lawsuit,” Gretchen Borchelt, VP for Reproductive Rights and Health at the National Women’s Law Center, tells The Daily Beast. “This rule is discriminatory, it’s unfair, and we’re going to challenge it.”
The Trump administration is attacking birth control access in other ways, too. President Trump’s proposed budget featured hundreds of billions in cuts to social services like Medicaid and Title X, services that help low-income women obtain affordable birth control. In addition, his budget defunds Planned Parenthood, the primary source of reproductive health care for millions of women.
“It’s a false promise that all women can get birth control somewhere else,” Borchelt adds, noting the cuts to programs aimed at women and children.
Contraceptive access is often characterized as a niche concern, something discussed in soft-focus as a women’s issue. But few issues directly affect society at large more dramatically than women’s ability to control their own reproduction. A rule allowing any employer to veto contraceptive coverage for female employees could affect the bodies and pocketbooks of 50 million women and the millions of men and children that count on them. It’s certainly more consequential than a misspelled Tweet, a cable news meltdown. A champagne popsicle.
In 2014, Justice Ginsburg warned in her Hobby Lobby dissent that by allowing individuals’ religious beliefs to dictate health care, the court was “venturing into a minefield.”
Well: welcome to the minefield.