Read part one of this two-part series here.
Yesterday, we reported on the devastating effects that a new rule proposed by the Trump administration would have on women’s access to contraception. This new rule completely undermines the rules put in place during the Obama administration under the Affordable Care Act, which require most health insurance plans to cover women’s preventive services, including contraception, at no cost to the women who receive the services.
Today, we’re diving a little deeper into the rule to expose the falsehoods that the administration is relying on in order to take away contraception coverage from millions of American women under the guise of religious freedom. As you’ll see, in its justification for the new rule, the Trump administration engages in a factual and legal analysis that ranges from misleading to flat-out false.
The proposed rule creates a blanket exemption for any employer or university with a “religious belief” or “moral conviction” to deny women contraception coverage in employee or student health plans. The rule also keeps in place the exemption for churches and houses of worship, institutions which have at no point since the adoption of the Affordable Care Act been required to cover contraception. But, in its justification for the new rule, the Trump administration falsely claims that the current rule doesn’t actually exempt all houses of worship. That is patently untrue.
The new rule would dramatically reduce women’s access to, and therefore use of, contraception. Statistics clearly show that increased contraception use leads to reduced rates of unintended and teen pregnancies. The Trump administration argues that it can ignore those statistics because they show that increased use of contraception—not necessarily increased access—reduces unwanted pregnancy. But without access, there can be no use. And it doesn’t take a rocket scientist to conclude (as studies have confirmed) that increased access will lead to increased use.
Most women don’t have access to Medicaid, Title X, or other federally funded programs. Yet the administration claims that the new rule won’t harm women who lose contraception coverage because they will somehow be able to get contraception through the very programs that they are ineligible for. What is more, Trump’s budget proposal drastically slashes funding for many of those programs.
A Flawed Legal Analysis
Part of the current rule known as the “accommodation” allows religious entities which object to providing contraception coverage to notify the government of their objection, at which point the government will then work with third-party insurance companies to provide the coverage. The accommodation ensures that women who work for companies or attend universities that object to covering contraception still get access to the health care they need, and it in no way implicates the religious liberty of the objecting organizations, which are removed from the process entirely.
But the administration claims that requiring objecting entities to submit a form to the government to take advantage of the accommodation is a substantial burden on the entities’ religious exercise that violates the Religious Freedom Restoration Act. It is hard to see how filling out a form explaining that you have a religious objection to something can substantially burden your religious exercise. Indeed, the majority of courts which have heard challenges to the accommodation have agreed that it does not.
Moreover, the government has a compelling interest in promoting women’s health and equality by increasing access to contraception. But the administration casts this core interest aside, insisting instead that the analysis should be whether the government has a compelling interest in denying exemptions to employers and universities that object to covering contraception in their employees’ and students’ health insurance. That’s not how the law works. The government has, of course, never asserted an interest in denying exemptions. Rather, it has asserted an interest in promoting women’s health and provided an accommodation that meets the needs of both religious employers and the women who work for them.
Religious freedom is not an excuse to discriminate against women. Women’s health care decisions should be made by women—not their schools or employers.
Americans United has been working to uphold the current regulations—which exempt churches and other houses of worship, but not all other types of employers, from the contraception requirement—in our lawsuit representing students at Notre Dame University who do not want their student health insurance to drop contraception coverage. If this new rule is finalized, you can rest assured we will fight it.