Sex, Lies, and Trump’s Rollback of the Contraceptive Mandate

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Posted in: Civil Rights

Nine months into Trump’s all-out war on women, it came as little surprise when the president officially rolled back the Affordable Care Act’s contraceptive mandate by allowing employers with religious or moral objections to exempt themselves. Like so many of his policies that deeply impact women’s lives, this one has no rational justification and is rooted in bad science.

The Contraceptive Mandate and its Effects

This Obama-era mandate, promulgated in August 2011, required that employer-based health plans cover prescription contraceptives (all types of which are used only by women) at no cost to the patient. It did so in response to a comprehensive study of health care needs and access in the United States, conducted by the non-partisan, Congressionally chartered group, the Institute of Medicine (IOM). IOM determined that contraception is an essential health benefit and that the primary barrier to access to effective birth control is cost. The relevant agency thus promulgated Women’s Preventive Services Guidelines that required “coverage, without cost sharing” for FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling. This mandate reflected the findings of the independent panel of experts who studied the question in this context, but it was also consistent with the recommendations of numerous health professional organizations. The medical profession is in agreement: access to contraception is a necessity for women’s health.

The impact of the contraceptive mandate was significant. Within just a few years, the percentage of American women paying for prescription oral contraceptives dropped from more than twenty percent to under four percent. More than fifty-five million women have access to free birth control because of the mandate. In addition to expanding women’s workplace opportunities, greater access to contraception contributes to fewer unintended pregnancies, fewer abortions, and fewer maternal deaths. So why would any governmental entity want to roll back such a successful rule?

The New War on Contraception

There was a long era in which the law made it difficult, if not impossible, to access contraception in the United States. The federal Comstock Law, passed in 1873, restricted the sale and circulation of a variety of “obscene” things, including pornography, contraception, and devices or drugs to induce abortion. The law also prohibited sending in the mail any material that used drawings or words to explain how to use any of the prohibited items. Anthony Comstock, the man for whom the law was named, was the leader of the New York Society for the Suppression of Vice and the leader of the movement that culminated in the passage of this sweeping law. For his effort, he was named Postmaster General and given the power to enforce the law.

The Comstock Law eventually lost its force through a series of court interpretations that made parts of it impossible to enforce. Among other developments, the Supreme Court ruled in Griswold v. Connecticut (1965) that married couples have a constitutional right to access and use contraception. The statute in that case, Justice Douglas wrote, “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” And in criminalizing not only the sale of contraceptives, but their use, Connecticut sought to achieve its goals—restricting sex to reproductive purposes—with “a maximum destructive impact upon that relationship.” Would Connecticut have the police “search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Surely, he concluded, the “very idea is repulsive to the notions of privacy surrounding the marriage relationship.” And keeping the police out of those sacred precincts was one function of “a right of privacy older than the Bill of Rights.”

That case grew out of a Connecticut law that criminalized the sale and use of contraception, but the ruling effectively invalidated all such laws. In 1972, the Court went further and found in Eisenstadt v. Baird that single people also had the right to use contraceptives. Regardless of marital status, the decision whether to have a baby was to remain free of “unwarranted governmental intrusion.” Only one year later, the Court issued its famous ruling in Roe v. Wade, which applied the same reasoning to the right to terminate a pregnancy until a certain point of gestation.

For all the controversy about abortion (though public opinion runs strongly in favor of access to abortion, particularly in the first trimester), though, the right to use contraception established in Griswold was always considered sacrosanct. Before the recent controversy over contraceptive coverage under the Affordable Care Act, it was hard to find people, regardless of their place on the political spectrum, who would admit to believing that the government should be able to block access to contraception. As just one illustration of this point, recall that Judge Robert Bork’s open opposition to the Griswold ruling cost him a seat on the Supreme Court in 1987. But in just the last decade, religious and moral opposition to contraception seems to have re-emerged.

Trump’s Campaign Against Reproductive Rights

The Trump Administration has already imposed several measures that have the purpose or effect of restricting access to contraception. He appointed Neil Gorsuch to the Supreme Court, at least in part because he believes Gorsuch will vote to overturn Roe v. Wade. But Justice Gorsuch was also the author of a deeply conservative opinion on contraceptive access at the federal appellate level. Trump also reinstated the Mexico City Policy, also known as the Global Gag Rule, that prohibits foreign non-governmental organizations from receiving US aid if they perform abortions, even if funded with non-US money, or provide any information about abortion to patients or clients. While this rule is always reinstated by Republican Presidents (and then withdrawn by Democratic ones), Trump’s version is worded in a way (perhaps carelessly) that increases the scope of the gag rule more than tenfold and does not exempt organizations working to provide HIV/AIDS relief. As I explain here, while the global gag rule was designed to reduce abortion worldwide by targeting all activities that might indirectly promote or facilitate abortion, research shows that it does not have that effect. In fact, the gag rule seems to increase the number of abortions because the cuts in funding cause family planning clinics to close or curtail services in ways that increase the rate of unintended pregnancy. Trump has also stripped Title X family planning funding from clinics that provide abortions (with non-government money), even though such clinics are the only source of contraception for many low-income women. He has supported countless bills that would have the effect, sometimes in complicated ways, of stripping reimbursements for care received at Planned Parenthood, which provides sexual and reproductive health care to almost five million women a year.

The recent announcement that the contraceptive mandate will be partially rolled back is just the next salvo in the war. The new rules state that any employer can be exempted from the mandate based on its “sincerely held religious beliefs” or “moral convictions” that are inconsistent with providing insurance for contraceptive services. Among the reasons given for rolling back the mandate is that access to contraceptives can promote “risky sexual behavior” among some teenagers and young adults. There is zero support for this claim, and, indeed, research shows that cutting off access to contraception and information about contraception (via, for example, abstinence-only education) does just the opposite. One need only look as far as Colorado to see the benefits of access to free contraceptives. The state has provided long-acting contraceptives (LARCs) such as IUDs completely free to teenagers and poor women for the last six years. The teen birth rate fell forty percent in just four years, and the rate of abortion fell forty-two percent. And one can see a cautionary tale in Texas, which, after significantly curtailing family planning funding and access, has seen a doubling of its maternal mortality rate, a slower decline in the teen pregnancy rate than in the rest of the country, the highest teen birth rate in the country, and one of the highest teen rates for sexually transmitted infections.

More central to the rollback, though, is the concern that the mandate imposes a substantial burden on the free exercise of religion by employers who do not believe in the use of contraception. What burden and whose religion?

Religious Liberty and Women’s Health

The original contraceptive mandate included a narrow exception for certain religious employers, which was then extended to include many non-profit schools, hospitals, and charities, who might also object to the inclusion of contraception in their plans. In such cases, the cost would be passed from the employer to the insurer, which would, in turn, be reimbursed by the government for any contraception provided to employees covered by the exempt plan. The exception was broadened again by the Supreme Court’s ruling in Burwell v. Hobby Lobby, in which it held that a for-profit business with religiously devout owners could also take advantage of this exception, under the protections of the Religious Freedom Restoration Act of 1993, as long as they proffered “sincerely held” religious beliefs that were inconsistent with contraceptive use. The owners of Hobby Lobby, along with owners of a few similar companies, objected to four approved contraceptive methods that might prevent pregnancy by interfering with the implantation of a fertilized egg in the uterine wall on the theory that those constitute “abortifacients” and are incompatible with a belief that human life begins at conception.

Putting aside the dubious idea that a for-profit corporation meaningfully engages in the “exercise of religion,” we see the tension here between religious liberty and women’s rights and health. This has been a running tension throughout the last decade, with effects felt most sharply since the 2016 presidential election. A shift in favor of “religious liberty” is not costless, at least not for women. Justice Ginsburg dissented in Hobby Lobby, writing powerfully about the direct tie between control over reproduction and women’s ability “to participate equally in the economic and social life of the Nation. . . .” The Supreme Court has recognized this connection in many important cases, including those in which it has recognized a constitutional right to terminate a pregnancy without undue burden from the government.

Justice Ginsburg rightfully criticized the majority’s ruling for failing to even consider the effect on women’s equality of broadening the exception to the contraceptive mandate. Women bear the brunt of physical and financial cost of reproduction. Prescription contraceptives are only used by women, and pregnancy, of course, is only experienced by women.

Much of women’s struggle for workplace equality arises from their unique reproductive role. As the Supreme Court observed in its 1992 abortion ruling in Planned Parenthood v. Casey, the “ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” In other words, the more women are like men, the better they will fare in the workplace. But as much as the ability to control the timing and number of pregnancies has enhanced women’s economic empowerment, the fact that more than eighty percent of women will at some point give birth—often when they are in the workforce—remains an obstacle to equality.

Pregnancy and its bedfellows—infertility, contraception, fetal risk, childbirth, and lactation (not to mention motherhood itself)—have all given rise to conflicts with employers. And while federal law prohibits pregnancy discrimination, it still occurs with alarming frequency.

The Tim Murphy Problem

In the recent rollback, Trump expresses grave concern about the employers whose sincere religious beliefs are trampled, he says, by the mandate. But aside from the religious orders like the Little Sisters of the Poor, who are repeatedly in the news as sympathetic objectors, who are these people exactly? According to CDC data, ninety-nine percent of women in the United States who have ever been sexually active have used at least one contraceptive method. Ninety-nine percent. So who are the people who strongly oppose contraceptive use and access? One answer to this conundrum is the Tim Murphy problem. Murphy is a US Congressman who takes a strong anti-abortion stance in public, and who just voted on a House bill that would criminalize nationwide all abortions after 20 weeks of pregnancy, but secretly also just suggested that his mistress ought to have an abortion. This is one example of a well-documented phenomenon in which people exempt themselves from the moralistic or religiously motivated rules they seek to impose on others. When it comes to their own lives and healthcare, people tend to be more pragmatic, more thoughtful, and less judgmental of themselves than they are of others.

This gap between religious beliefs and personal actions is on full display in the context of abortion—as we saw with Representative Murphy. (Murphy is not even the first politician to be caught exhibiting this precise type of hypocrisy.) Twenty-four percent of all abortion patients are Catholic, and their relative rate of abortion is the same as for all women. Evangelical Protestant women, affiliated with the religion that is most strongly opposed to abortion, have a relative rate of abortion that is only half the overall average, but they still undergo thirteen percent of all abortions.

The gap between stated religious beliefs and contraceptive use is much, much starker. Ninety-eight percent of sexually active Catholic women have used a contraceptive method other than natural family planning, only one percent less than the overall rate for women, even among those who attend church regularly. Seventy-four percent of Evangelicals currently use a highly effective method of contraception. There is nothing hypocritical about subscribing to a particular religion and choosing not to follow all of its tenets. But it is hypocritical to insist that the world fall to your religious beliefs even if you don’t hold tight to them yourself. And that is what is on full display in this recent rollback. I’ll ask the question again: Who are these people with strong “moral conviction” or “sincerely held religious beliefs” that prevent them from providing contraceptive coverage to employees (even at no cost to the company)?

Not So Fast—Contraceptive Coverage May Still Be Mandated by Other Laws

Despite laughably and implausibly low estimates by the Trump administration of how many women will be harmed by the new rule (no, the number of companies that have actually already filed lawsuits is not a good predictor of how many will claim exemptions that require no verification and will be accepted without question), potentially hundreds of thousands of women will now incur costs for birth control that they have been able to access for free since 2011. Some of the harm might be mitigated by the rules protecting contraceptive insurance access that were in place before the Affordable Care Act’s mandate.

In the early 2000s, it was relatively common for employer-based insurance plans to omit coverage for prescription contraceptives from an otherwise comprehensive plan. There were several cases in which women argued that these policies violated Title VII—as a form of sex discrimination, pregnancy discrimination, or both. In Erickson v. Bartell Drug Co., a federal district court in Washington State held that Title VII requires employer-based insurance to provide equally comprehensive coverage for both sexes, and that means it cannot omit contraceptive coverage (for drugs and devices used only by women) from a comprehensive plan. Several other district courts and the EEOC reached the same conclusion in similar cases. Only one federal appellate court has considered this issue, and it ruled to the contrary.

While contraceptive equity was being argued in court, states were quietly passing mandated benefit laws that required insurance to include coverage for contraception. Maryland passed the first such law in 1998, and twenty-eight states followed suit. The federal government adopted a similar mandate in 1998 requiring contraceptive coverage under the Federal Employee Health Benefits Program. But the effect of these laws is severely limited by ERISA, which pre-empts state law for a majority of employer-based plans (and does not contain a similar mandate).

Despite their limitations, these court rulings and state insurance laws did cause a dramatic increase in the number of employer-based plans that covered prescription contraceptives. In 2000, only three in ten plans included such coverage, while a decade later, nine in ten did. None of these laws are affected by the new ruling on the contraceptive mandate.

Conclusion

The newly announced changes to the contraceptive mandate are unjustified, unsupported by any fact (scientific or otherwise), and completely unnecessary. And while they will produce no positive benefit, they will exacerbate harm to America’s most vulnerable women. Enough is enough.

  • Joe Paulson

    The majority in Hobby Lobby claimed an exemption would not necessarily burden women because of alternatives in place. The dissent and others pushed back, but I think that issue should be addressed more.

  • Jimbo Hawkins

    Wait, so we’re not talking about banning “the pill,” but rather, in limited circumstances, having people actually pay for their own birth control? Costhelper.com says the costs are as follows: “With Insurance: $5-$40 a month; without Insurance: $20-$50+ a month.” And we’re talking about people with jobs, because this mandate applies to employers, right? And how much are condoms? Do guys get condoms via insurance too? So this really isn’t about reproductive rights. No. It’s about who’s paying for the pill. Got it. Good talk.

    http://health.costhelper.com/birth-control-pills.html

  • Slim Chance

    Putting aside using prescription contraceptives off-formulary for a medical condition, what you are saying is that the ability to engage in recreational sex without fear of pregnancy is a female “right” because pregnancy carries with it certain health consequences and so, therefore, an employer should be required to pay for it. Sorry, can’t make that connection. I mean, food is certainly a physical necessity without which very serious medical consequences will follow. So why don’t we require an employer to pick up employees’ grocery bill? Oh wait! Food is not recreational so that really wouldn’t compare. How about this. We all know how important it is to unwind and recharge after a hard day and that stress can have serious medical consequences. So why don’t we make employers pick up employees’ bar bill?

    Thing is, providing contraceptive assistance to the poor is just that, charity, so whatever benefits were shown under those circumstances do not apply to people receiving wages and other benefits. But you’re not talking about charity. You’re talking about whether an employer should be required to pay for its employees’ recreational sex in addition to the wages and other benefits that the employer provides. And make no mistake, this so-called right indirectly benefits men as well, since most employer-sponsored health plans include immediate family members. So the working man who desires recreational sex with his wife without fear of an unwanted pregnancy can do that without having to decide the degree to which recreational sex is a financial priority. He can save that money to buy a big-screen tv or a new set of golf clubs!

    The decision to have recreational sex is not a medical issue any more than the decision to eat organic or where to go on vacation. It’s a choice that has a cost. Make no mistake, I don’t object to an employer sweetening the “benefits” package to include contraceptive coverage. It’s a free country (or at least it used to be) so an employer can include whatever it believes will permit it to hire and retain the best people for its business. And its failure to include such coverage may impede its abilities in that regard. But to lay claim to contraceptive coverage as an employer mandate or a “woman’s right” is as absurd as mandating payment for gym memberships (which easily could lend itself to the same over-the-top rationalization you use to attempt to justify a pay-for-contraception mandate). In fact, the length to which you must go to attempt to make your case reveals it for the sophomoric sham that it is.

  • Kelly M. Haggar

    About a zillion people have previously noticed the disconnect between “Get out of my bedroom!” yet “Leave your wallet behind.” Until I went to law school, I thought the most important part of Wickert (1942) was “it’s hardly lack of due process for the gummit to regulate what it subsidizes.”