Raquel Toral – The Trump administration continues to decimate the Obama administration’s initiatives. President Trump’s latest pillage masked behind expanding religious liberty comes at a steep price. The new rules issued by the administration on October 6, 2017, significantly limits the Affordable Care Act’s promise of no-cost contraceptive coverage. The rewrite of the interim final rules is premised on accommodating moral and religious objections.
The contraception mandate undeniably broadens the entities that may claim religious objections to providing conceptive coverage. The interim final rules allow for both non-profit corporations, including corporations that are publicly traded, and nonprofit groups, to claim an exemption from the contraception mandate on religious grounds. Religiously affiliated institutions serve and employ people of many different faiths such as schools, hospitals, and social services providers. The Health and Human Services Department rule also provides for exemptions based on moral objections except for publicly traded companies. According to Kaiser Family Foundation survey of employers, prior to the passage of the ACA and the contraceptive coverage requirement, 85% of large firms covered prescription contraceptives in their largest health plans. However, with the roll back of the contraception mandate, any requirement for coverage without cost-sharing will fall back onto the states. But, state laws only apply to state regulated plans, not self-funded plans where 61% of covered workers are insured.
Upholding his promise during the 2016 campaign, Trump has successfully reversed the mandate that requires employers to provide birth control. Appealing to conservative ideals, the rewrite of the contraception mandate has triggered backlash from civil liberty groups claiming the exemption undeniably provides a license for discrimination. Administration officials predict at most 120,000 women will lose access to free contraceptives. Moreover, the federal requirement has helped reduce cost barriers to contraception use that can be considerable. For example, according to the Guttmacher Institute, without contraception coverage, women would need to pay more than $1000 out of pocket to start using a highly effective methods of contraception such as IUD, contraception implant or sterilization; that would amount to nearly one month’s salary for a woman who works full-time at the federal minimum wage of $7.25 an hour. Nonetheless, there is insufficient data to determine the actual effect on plan participants and beneficiaries. Organizations such as the American Civil Liberties Union and the National Women’s Law Center have filed lawsuits claiming violations of the equal protection and establishment clauses.
It remains unclear how many of the 62 million women in the United States who currently benefit from the ACA’s contraception coverage will be affected. According to a study conducted in July 2015, by Health Fairs, under the ACA’s coverage provision women saved an estimated $1.4 billion on birth control pills in the first year alone. More important, the study found an average woman saved an estimated $255 annually on oral contraceptive pills and $248 for intrauterine devices, which are two of the most common forms of contraception.
Since the law was enacted in 2012, oral contraceptives are responsible for a 63% drop in average out-of-pocket spending according to a Kaiser Family Foundation report. The total out-of-pocket savings for contraception under the ACA is irrefutable and potentially much greater. The Trump administration has made women his new target by charging women more for healthcare before or after the cost; costs that were covered by the ACA. Rolling back the contraception mandate will effectively leave millions of women without birth control. However, the biggest unknown is how many people will lose coverage which is contingent on how many employers and schools will claim a religious or moral exemption; whether they will object to some or all methods and services; whether they will use the now optional accommodation; and now many employees, students, and dependents will be affected.
The constitutional basis for an exemption by the promulgation of the new contraception mandate remains suspect. The free exercise argument fails because the mandate is a neutral law of general applicability. More specific, the mandate did not target religiously affiliated institutions and did not include exceptions for other religiously affiliated institutions. How can a neutral law of general applicability violate the Free Exercise Clause?
Like the free exercise argument, the freedom of expression argument fails for similar reasons. The contraception mandate did not force these religiously affiliated institutions to accept people whose views on contraception would undermine the institutions’ anti-contraception message. This bears the question of how a law could violate the freedom of association when it does interfere with associated membership? In similar respects, the mandate did not impose a substantial religious burden under the Religious Freedom Restoration Act. On the contrary, scholars have argued granting an exemption would impose a substantial burden on women who would have otherwise had access to free contraception. This argument does not go unsupported; the National Women’s Law center reported a year after the birth control mandate took effect, there was a 5% increase in the number of women who filled prescriptions. So, how can a law that does not place a substantial burden on anyone’s conscience trigger the Religious Freedom Restoration Act?
The Trump administration has evidently overlooked the astronomical costs of cutting the mandate and failed to account for the consequences implicated with such a legislation. Staggering expenses such as unplanned pregnancies can cost U.S. taxpayers an upwards of $20 billion per year just in birth-related hospital fees. According to an NRP report in 2012, investments in family-planning services, including those through Medicaid, not only “more than pay for themselves but also stand to save government further billions in healthcare and other related costs.” Further study is needed to determine the long-term financial impact of unplanned pregnancies. More important, the financial impact of the Trump administration’s obstruction in women’s individual health and reproductive management.
