On the very same day that they celebrated House passage of a bill that could deprive more than 24 million Americans of their health coverage, President Trump and his administration started gunning for women's contraceptive benefits.
An executive order Trump signed Thursday purportedly designed to promote "religious liberty" takes direct aim at the Affordable Care Act's provision of contraceptives without co-pays or deductibles. The order directs the secretaries of Health and Human Services, Treasury and Labor to "consider issuing amended regulations … to address conscience-based objections to the preventive-care mandate" of the ACA.
Lest anyone be misled or confused by the elliptical language in the order, the Department of Health and Human Services promptly issued a news release declaring that HHS Secretary Tom Price "welcomes the opportunity to reexamine [the] contraception mandate." It quoted Price as stating that the agency "will be taking action in short order to follow the President's instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees."
If those sound like the words of a pastor rather than a physician responsible for overseeing healthcare and health insurance rights for millions of Americans, so be it.
The implications of Trump's executive order and Price's words aren't hard to divine, but health insurance expert David Anderson of Duke puts it concisely: "The provision of no cost-sharing long acting reversible contraception as a key covered service in ACA plans is at risk."
He advises, " If you were thinking about getting an IUD, schedule the appointment. If your current LARC [long-acting reversible contraceptive, such as Norplant or an IUD] needs to be replaced soon, schedule the appointment. If you currently use barrier or oral hormonal methods and don't want to get pregnant for several years, schedule an appointment. Protect yourselves as well as you can."
Price long has been a crusader against the ACA mandate for contraception benefits. At the Conservative Political Action Conference in 2012, when he was still a Republican Congressman from Georgia, Price dismissed the notion that any woman might need help affording contraceptives.
"Bring me one woman who has been left behind. Bring me one. There's not one," Price replied to a question (see accompanying video). Referring to the mandate that contraceptive services without cost sharing be part of every health plan, he continued, "The fact of the matter is this is a trampling on religious freedom and religious liberty in this country."
The truth is that millions of American women were then in need of publicly funded contraceptives — 20 million, according to an estimate by the Alan Guttmacher Institute, which mapped the number of women of child-bearing age against those with household income below 250% of the poverty line. That figure had increased by 22% since 2000, even as the number of women receiving services from publicly funded health clinics had fallen by 9%, to 6.1 million.
That figure is certain to increase if the Republicans' ACA repeal bill, approved by GOP members in the lower house Thursday by a hair's-breadth margin, were to become law. The bill defunds Planned Parenthood, the leading provider of reproductive health services to low-income women, for at least one year.
Contraceptive services have been a battleground for religious conservatives virtually since the day the Affordable Care Act was passed. The major blow was delivered by the Supreme Court in its 2014 Hobby Lobby decision. The decision extended to private companies asserting religious scruples the right to cut contraceptive services from their health plans. That privilege previously applied only to churches and other religious organizations.
Justice Ruth Bader Ginsburg asserted in dissent that the court through its ruling had "ventured into a minefield." She was prescient.
The Obama administration crafted a work-around through which contraceptive benefits for employees of companies or organizations claiming a Hobby Lobby exemption would be paid for by the federal government rather than their employers. All the employers had to do was submit a document stating their objection.
That hasn't been good enough for some employers, who claim that filing the paperwork to obtain the exemption is itself "a substantial burden on religious liberty" under the law. The Supreme Court has punted on the issue, sending several cases brought by religious groups back to appeals courts for further discussion, rather than issuing a decision itself.
Ginsburg also predicted that "the Court's expansive notion of corporate personhood" would "invite for-profit entities to seek religion-based exemptions from regulations they deem offensive to the faith."
That's turned out to be true too. Last year, a federal judge in Detroit ruled that a local funeral home was within its rights to fire a transgender employee because its owner had a religious belief that gender transition violated biblical teachings.
Whether higher courts will agree — and how the Supreme Court eventually decide the contraceptive cases — is unknown. But Trump's executive order, which aims to "guide" executive branch agencies to create policies aimed at promoting "religious liberty," is a signal for them to start crafting administrative rules allowing discrimination against LGBTQ individuals and women and rolling back Obama-era rules protecting them.
HHS Secretary Price says he'll be out "in short order" with regulations governing contraceptive availability. Does anyone think those regulations will enhance women's access to contraceptives? Oh, sure.
But that's just the start. Over the last decade, claims of "religious liberty" have have gone well beyond the initial quest for the right to engage in rituals and observances that had little impact on others. Now it's all about taking positions that reduce or restrict the rights of anyone not claiming that "liberty," such as employees. This is how "religious liberty" shades into religious tyranny.