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Birth control coverage gutted by Trump administration’s new religious exemptions

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On Wednesday, the day after the midterm elections, the Trump administration issued final rules gutting the Affordable Care Act’s requirement that insurance plans provide birth control coverage by widely broadening the standards for religious and moral exemptions.

Beginning on January 15, 2019, when the rules go into effect, any employer, health insurance provider, or university will be able to claim a religious or moral objection to providing contraceptive coverage to its employees, students, and insurance beneficiaries. “The government is handing out religious accommodations like candy,” said Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project. “This is all part of a larger, coordinated campaign by the Trump administration to allow religious beliefs to [be used to] discriminate against women and LGBT people.”

The ACA mandate allowed over 62 million women to obtain birth control without any out-of-pocket expenses, saving an average of $255 each year. Most employers were required to cover all FDA-approved contraceptives in their plans, but “houses of worship” could choose to be exempted, according to State and Federal Contraceptive Coverage Requirements: Implications for Women and Employers, a March 2018 Kaiser Family Foundation report. Religiously affiliated nonprofits could opt out of providing coverage through an “accommodation,” and the insurer, not the employer, covered the cost of the contraception.

“The original exemption included in the ACA for ‘religious institutions’ already leaves out too many women,” said Sara Hutchinson Ratcliffe, vice president of Catholics for Choice. “The rule’s expanded exemption will allow any employer or insurance provider to deny coverage for contraceptives with no recourse for access to this essential benefit. By dramatically expanding the types of entities eligible for a religious exemption, these rules only facilitate employers’ and insurers’ ability to supersede the decision making of their employees and beneficiaries. This is not only a violation of conscience and the American concept of religious liberty, but it is plainly and flatly wrong.”

In October 2017, the Trump administration issued interim final rules that broadened religious exemptions for contraceptive coverage, but federal district courts in Pennsylvania and California issued preliminary injunctions blocking their implementation. However, the Trump administration entered a settlement agreement with 74 employers and universities that had originally challenged the ACA birth control benefit, including the University of Notre Dame, allowing them to deny contraception coverage for their employees, students, and their dependents. “Notre Dame is refusing to cover some methods of contraception and charging co-pays and deductibles for others,” said Michelle Banker, senior counsel for the National Women’s Law Center, which is challenging the legality of the settlements, along with the Center for Reproductive Rights and Americans United for Separation of Church and State on behalf of the student group Irish 4 Reproductive Health and others insured under Notre Dame’s health plans. “As a result, Notre Dame students and staff are being forced to make critical decisions about their reproductive health care based on the religious beliefs of the university.” 

Losing the birth control benefit will also harm “transgender and gender-diverse people [who] are already facing so many obstacles to getting health care,” said Meera Shah, a family medicine physician specializing in gender-affirming care and a fellow with Physicians for Reproductive Health. “Religious and moral exemptions cause further harm to a community that is already marginalized. Many of my patients have told me that they stopped going to doctors out of fear of being stigmatized. The final rule is another way that the government is reversing protections on people who are already facing discrimination. The atmosphere right now has given people the freedom to express their often-misinformed opinions, and unfortunately, vulnerable populations are the target.”

Religious accommodations are yet another tool that anti-choice advocates are using to curtail access to comprehensive reproductive health care. “The final rule will formalize what has been happening for a long time,” said Lois Backus, executive director of Medical Students for Choice. “Over the last 10 years, there has been increased latitude toward permitting people in medical institutions to claim a moral or religious objection related to women's health care. This not only makes it difficult for patients, but also makes it difficult for medical students to be able to learn to provide family planning care. Generally, large institutions avoid pushback and controversy, so there often is overcompensation to new regulations such as this one.” 

Religious refusal policies “put patient lives and health in danger,” said MiQuel Davies, Georgetown University’s Women’s Law and Public Policy fellow at the National Women’s Law Center. She said the new rule “attempts to allow individuals and entities to use their beliefs to block patients from getting the care they need, and is just the latest attempt by the [Trump] administration to enshrine discrimination in health care.”

Many workers and students will face significant out-of-pocket costs for contraception and may no longer be able to afford it at all. “Religious refusals must be understood in the context of what is happening in health care across the nation,” said Rev. Dr. Cari Jackson, executive for religious leadership and advocacy at the Religious Coalition for Reproductive Choice. “Right now, a quarter of the nation’s hospitals are religiously owned. Those health care facilities are making decisions, not based on the health and well-being of patients or medical necessity as determined by medical professionals, but based on the positions of religious leaders. Americans in rural areas, many of whom are Trump supporters, will be hardest hit by religious refusals when a religiously owned hospital is the only hospital in a hundred or more miles.”

Advocates are also concerned that broadening the use of religious and moral refusals for contraception coverage could open the door to deny other medical procedures that further discrimination against women and LGBT people. “The rule not only will expand the exemption to allow some employers to dictate what contraceptive services their employees may access, but it could pave the way for employers to deny any services to employees that they may object to on a moral basis,” said Hutchinson Ratcliffe. Moral and religious objections could be used to deny “health insurance coverage for end-of-life care, prenatal care for an unmarried pregnant woman, or coverage for the spouse of an LGBT employee. At its core, religious freedom is an expansive rather than a restrictive idea. It is not about telling people what they can and cannot believe or practice but giving people the ability to follow their own conscience in what they believe or practice. The protections extend to one’s personal religious beliefs and practices, but they do not give entire institutions or individuals license to obstruct or coerce the exercise of another’s conscience.”

Legal action around the final rules is ongoing, with numerous advocacy organizations working to block them from being implemented in January. Otherwise, “many women, and especially low-income women, will no longer have access to birth control,” said Rachel Laser, president and CEO of Americans United for Separation of Church and State. “And this is before we even get to the refusal of care regulations,” which Laser points out the Trump administration will also be finalizing in the near future. These rules mean “that any type of medical procedure could be denied on the basis of religious or moral beliefs, such as infertility treatments for interfaith couples, care for a woman facing an ectopic pregnancy, hormone treatments for transgender people, and access to preventative HIV medication. And it wouldn’t just be doctors who could refuse care, but anyone working in the health care system from nurses to technicians to schedulers to building janitors.”

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