There are few things more profoundly important to a woman than controlling when and if she has children. Almost all sexually active women have used at least one type of birth control in their lifetimes. One of the hallmarks of the 2010 Affordable Care Act is that it promised women comprehensive preventive care at no out-of-pocket cost if they were covered by employer-sponsored health insurance plans. Under regulations adopted under the Obama administration, that care included 18 methods of contraception.
Without insurance, the price of some contraceptives can be daunting for many women. In a legal filing in November, several state attorneys general, including Xavier Becerra of California, said that since the requirement for insurance plans to cover contraception took effect in 2012, women across the country had saved $1.4 billion on birth control.
But the fight for contraception coverage has been fraught, because not all employers have willingly agreed to participate. Churches and other religious groups were entirely exempted from the rule, and other not-for-profit religiously-affiliated employers with similar objections were allowed to opt out of providing the coverage via an “accommodation” or workaround: Basically, the insurance company or benefits administrator still had to offer birth control coverage to employees — but the employer wasn’t technically involved and wasn’t billed for it.
As the years passed, the exemptions grew broader. For instance, a Supreme Court ruling allowed some small, privately held companies whose owners had religious objections the same accommodation as not-for-profit religiously affiliated employers. Time after time, the government sought to placate employers who complained — or sued — because they claimed their religious beliefs were being ignored.
Then, in October, the Trump administration put into place — without the required advance notice or opportunity for public comment — far-reaching new rules offering full exemptions to employers who claimed a religious objection to contraception and also to those who claimed a “moral objection.” The exemptions would be available to private companies of all sizes as well as nonprofits. And those companies would not be required to offer the workaround that guaranteed contraceptive coverage for their female employees at no cost to the employer.
Fortunately, two separate court rulings last month rebuffed the administration on this issue. In the more recent one, U.S. District Judge Haywood S. Gilliam Jr. took the administration to task for illegally putting the rules into effect without first giving notice and allowing public comment as required by the federal Administrative Procedure Act. Gilliam issued a nationwide preliminary injunction and ordered the administration to return to the rules that were in place before October. The judge issued the order in response to a lawsuit filed by Becerra along with the attorneys general of Delaware, Maryland, New York and Virginia. They argued that the new rulings were not only illegally put in place but had harmed those states and their citizens already. The judge agreed, saying the new rules “transform contraceptive coverage from a legal entitlement to an essentially gratuitous benefit wholly subject to their employer’s discretion.”
In the tortured history of birth control coverage under the ACA, the government has made change after change to placate employers who objected on religious grounds to covering birth control. Now, the Trump administration has essentially neutered the mandate entirely, allowing any employer with any religious or moral objection to refuse to offer birth control coverage — without any requirement that they allow their insurance company to make an accommodation.
It is unjust and un-economical to deprive women of easy and affordable access to birth control. The issue here should not be an employer’s religious or moral beliefs but the needs, beliefs, health and safety of the employee. Why should our employers make the moral or religious decisions about our healthcare? Besides, it is already clear that there are plenty of ways for employers to register their objections and then allow insurance companies to step in and provide the insurance. That’s accommodation enough.