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Trump's War on Women: Obamacare Birth Control Mandate Significantly Weakened
The Trump Administration is at it again, putting the religious and moral objections of large companies and institutions over the fundamental right of women to have access to birth control. The U.S. Department of Health and Human Services, formerly led by Tom Price before his resignation on September 29 due to a private plane scandal, revised the earlier policy of the Department concerning which employers must provide contraceptive coverage to employees.
This rewrite of the federal policy, in interim final rules from the Health and Human Services Department, broadens the entities that may claim religious objections to providing contraceptive coverage. They now encompass nonprofit organizations and for-profit companies, including ones that are publicly traded. Also included are higher educational institutions that arrange for insurance for their students, as well as individuals whose employers are willing to provide health plans consistent with their beliefs.
A separate HHS rule covers moral objections, allowing exemptions under similar circumstances except for publicly traded companies.
However, both the religious and moral exception rules are drafted so broadly that no one is really sure how many companies will take advantage of it and how many women will lose free birth control. "It is a huge loophole for any employer that does not want to provide birth control coverage to their employees," says Dania Palanker, a professor at Georgetown University's Center on Health Insurance Reform.
This is far different than the exception that the Obama Administration allowed under the Affordable Care Act, and the pains it took to make sure the affected women continued to retain coverage even if their employers wouldn’t pay for it.
The Obama administration created an exemption for churches and allowed other "religious employers" to opt out by notifying the government. When they did so, the administration would arrange with their insurance companies to provide the coverage directly, without the employers' involvement.
But, don’t worry because the Trump Administration thinks that only a very small number of women will be impacted by this exception. The problem is that the number of affected women, while small when considering the overall population of the United States, is in the six figures!
In one section of the religion rule, administration officials predict 120,000 women at most will lose access to free contraceptives through the combined rules — many fewer than critics anticipate.
Really, the Administration has no idea how many employers would use a religious or moral objections to opt out. They use the misguided assumption that only entities that have already been vocal about this issue would take advantage of the rule change.
HHS officials said they don't expect many companies to seek waivers. They said the group seeking waivers will likely be limited to those about 200 companies and nonprofits that have already sued.
But Professor Palanker points out that there is a large unknown population of women who will likely lose free health control because no one really knows how many companies are owned by people with an objection to supplying free birth control to their employees.
Palanker says the impact could be a lot bigger. There are a lot of large private companies, she says, whose owners may hold strong religious beliefs but did not want the publicity and expense of suing the federal government. "A lot of women will retain birth control coverage," Palanker says, "but there will be a lot of women who will lose that coverage."
Under the new HHS rules, women who work for employers that take advantage of this rule change will have to bear the cost of birth control, which is not an insignificant expense.
That means they'll find themselves paying out of pocket. A one-month supply of birth control pills can cost anywhere from $4 to $55 or more, according to GoodRX.com. Longer-acting contraception, like an intrauterine device, can cost more than $1,000, says Sarah Lipton-Lubet, a vice president at the National Partnership for Women and Families. She says the new rule is a tool for discrimination against women.
The savings to women has been significant when considered compared to overall prescription drug costs borne by consumers since the Obama Administration determined that birth control was part of preventive care that employers were required to cover.
Since then, savings on the birth control pill have accounted for more than half of the drop in all out-of-pocket prescription drug spending, according to the Kaiser Family Foundation.
California and the ACLU have already challenged the new rules in court based on the First Amendment.
On Friday afternoon, California Attorney General Xavier Becerra and the American Civil Liberties Union both filed complaints in the U.S. District Court for the Northern District of California. The two suits allege the rules violate the First Amendment by favoring certain religious views, discriminate against women and were issued without following correct government procedures. California’s also claims the rules will harm the state, by leaving “millions of women” without access to birth control and thus increasing contraceptive costs to state-funded programs.
The ACLU is also pursuing an argument that the rules violate the Fourteenth Amendment.
It also sets up a fight between advocates of religious freedom and those of equal rights for women. The American Civil Liberties Union sued the Trump Administration within hours of the rule being published, claiming it violated the 14th Amendment's Equal Protection Clause, which ensures that all people receive equal protection under the law. "The Trump Administration is forcing women to pay for their boss's religious beliefs," said ACLU senior staff attorney Brigitte Amiri, in a statement.
You might be thinking how amazing it is that abortion did not factor into this exception. Well, the Trump Administration saved that topic for reinterpretation of a different part of the Affordable Care Act.
HHS officials say they also plan more stringent enforcement of a provision in the Affordable Care Act that prohibits federal subsidies from being used for insurance policies that cover abortion. The agency will issue guidelines for insurers Friday on how they have to charge women who want abortion coverage at least $12 a year more for such a policy, and they have to keep that money in a separate fund to be used only to pay for abortions.
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