Bending Toward Justice: Trump grabs back your birth control

If you’re a woman who uses contraception, your health care costs may be about to skyrocket under new rules from the Trump Administration. Eight lawsuits filed in federal district courts around the country aim to stop the new rules from going into effect.

At issue are changes the Trump Administration is making to how it implements the Patient Protection and Affordable Care Act, known as ObamaCare. That law requires that health insurance plans provide certain preventative health services at no cost to the insured — no co-pays, no deductibles, no out-of-pocket expenses. Preventative care for women, which has historically cost more than preventative care for men, must be included.

Soon after the Affordable Care Act went into effect, the Obama Administration turned to the Institute on Medicine, an arm of the Academy of Sciences, Engineering and Medicine, to recommend the kinds of health services to be included on the list of no-cost preventative health care. A broad consensus among experts in medicine and public health emerged: women’s preventative health services must include no-cost access to the full range of contraceptives approved by the Food and Drug Administration, along with contraceptive counseling. Why? Because 99 percent of all women will use birth control at some point in their lives, to either treat health condition or avoid unwanted pregnancies, or both.

The Obama Administration adopted this recommendation through administrative rules setting forth the preventative health services required under the Affordable Care Act. Starting in 2012, then, all health care plans offered in the United States were required to provide a full range of no-cost contraceptive services, with two major exceptions.

First, houses of worship with religious objections to contraception would be exempt, and their employees would continue to pay out-of-pocket for contraception. Second, religiously affiliated non-profit organizations — like Catholic hospitals, for example — were not exempt, but instead were provided an accommodation: if they objected to paying for contraceptive coverage for their employees, they could file a notice with their insurer or the Department of Health and Human Services, and the insurer would step in to pay for the contraceptive services at no cost to the organization’s employees. That way, religious non-profits would not be compelled to provide and pay for contraception to their women employees, but the employees would continue to enjoy the benefits under the Affordable Care Act.

In 2014, the U.S. Supreme Court ruled in Burwell vs. Hobby Lobby Stores, Inc., that the federal law known as the Religious Freedom Restoration Act compelled the Department of Health and Human Services to extend the accommodation afforded to religious nonprofits to closely-held corporations with religious objections to contraception. The Department then amended its rules to comply with the Court’s decision in Hobby Lobby.

Without notice to the public, and without any consultation with public health and medical professionals, the Trump Administration drastically changed these rules in early October 2017 by issuing interim final rules that blow a hole through what had been a limited exemption to the no-cost contraception requirements. While the exemption previously applied only to houses of worship, it now applies to all nonprofit organizations and closely-held corporations with a religious or moral objection to contraception, including private universities that provide student health care, and publicly-held corporations with objections based on religious beliefs. The accommodation option is still available, but any of these entities can choose the exemption route instead.

The difference is substantial. When an organization or corporation opts to exempt itself from the contraception mandate, its employees — and in the case of a university, its students — will no longer have access to no-cost contraception. Only when an accommodation is used do the employees (and students) continue to receive the same no-cost contraception services and counseling.

According to the Kaiser Family Foundation, contraceptives accounted for 30-44% of women’s out-of-pocket medical expenses prior to the Affordable Care Act. Those figures dropped significantly starting in 2012. And it wasn’t just that women saved money. The Kaiser Family Foundation also found that the Obama era rules:

[I]nfluenced the decisions women make in their choice of [birth control] method. After implementation of the ACA contraceptive coverage requirement, women were more likely to choose any method of prescription contraceptive, with a shift towards more effective long-term methods. High upfront costs of long-acting methods, such as the IUD and implant, had been a barrier to women who might otherwise prefer these more effective methods.  When faced with no cost-sharing, women choose these methods more often, with significant implications for the rate of unintended pregnancy and associated costs of childbirth.

The Trump Administration has shifted the balance struck by the Obama Administration rules and the Supreme Court’s decision in Hobby Lobby too heavily in favor of religious groups, and at the expense of women.

A lawsuit filed by Medical Students for Choice, and two students at the University of Notre Dame, asks the federal district court in Washington, D.C. to enjoin the Trump Administration’s rules — legalese for prohibiting the rules from going into effect. With lawyers from the Center for Reproductive Rights and the law firm of O’Melveny & Myers, LLP, the plaintiffs claim that the new Trump Administration rules violate the Administrative Procedures Act (because they were hastily written without notice or public comment, and are arbitrary and capricious), and the Establishment and Equal Protection Clauses of the U.S. Constitution. 

Several other Notre Dame students filed a similar lawsuit in the federal district court in Indiana, with lawyers from the National Women’s Law Center and Americans United for the Separation of Church and State. A third lawsuit filed in San Francisco federal court by the American Civil Liberties Union and the SEIU-UHW on behalf of their members raise similar claims, as does a lawsuit filed in federal court in Denver by teacher at a religious private school.

In tomorrow’s column, we’ll discuss the interplay of federal and state law governing health insurance plans, and whether women excluded from the contraception mandate by the new Trump Administration rules will be protected by state law. We’ll also examine the lawsuits filed by Washington, Pennsylvania, Massachusetts, and California (the last of which was joined by Virginia, New York, Delaware, and Maryland) to stop the new rules.