Terry H. Schwadron
What keeps smacking me on the side of the head is the almost total Orwellian nature of language at the White House. Night is day, defense is war, and now — again — cuts to women’s health are ways for Team Trump to declare itself a champion for women.
The latest foray, which has by now hit front pages, is a sweeping revision of the government’s views on whether health care under Obamacare must or even should underwrite contraception coverage. The birth control pill has become the bitter pill that could be forced on 55 million women, who currently pay for contraceptives as part of their health care coverage.
The change, which can take effect as a regulation change with no vote from Congress, would exempt any employer who has a mind to do so to opt out of coverage that includes contraceptives. There is no need for a reason, no insistence even that this come out of religious objection, for example.
The New York Times reprinted the 34,000-word document here in case you want to read it. If you want to pass, here is the conclusion: “These interim final rules will result in some enrollees in plans of exempt entities not receiving coverage or payments for contraceptive services.”
Let’s back up. The Affordable Care Act/Obamacare mandated various coverage points, including more well-known items like not punishing people for pre-existing medical conditions, and perhaps lesser-known item like contraceptives. According to The Times, by 2014, two-thirds of women using birth control pills and nearly 75 percent of women using the contraceptive ring were no longer paying out-of-pocket costs. In 2013 alone, the mandate saved women $1.4 billion on birth control pills, according to the National Women’s Law Center.
Various employers with strong religious objections, including a group of nuns, objected to the mandate issue. The Obama administration tried setting up an exemption process for such religious-based objection, but a court case resulted that went to the Supreme Court. The court overruled Obama.
Now a simple published rule change would greatly expand the number of employers and insurers that could qualify for exemptions. The new rule would allow for “moral” objection of any kind in addition religious objection, including those objections filed for-profit or publicly traded corporations.
Naturally, unsaid here is that dropping a coverage point of any kind, as in this one, can produce a cost-savings for the employer who objects and is granted a waiver. So much for moral objection.
A longish post in ThinkProgess outlines some of the roller-coaster legal thinking behind all of this. At the center is what the posting sees as a dangerously weakening of any distinction between “religious” objections and “moral” objections to reproductive health care. The Obama era dispute was focused on religious employers (Hobby Lobby, for example) who had religious objection to contraception. Judicial opinions from Justice Samuel Alito and lobbying by groups including the March for Life and the Alliance Defending Freedom have pushed to blur the line between religion and moral opinions not necessarily rooted in religious belief.
That shift would seriously undermine the efficacy of the health law as a whole, the article argues. The open question is the degree to which the Trump administration accepts this shift. Again, under the proposal, employers who do not want to provide birth control coverage to their employees will be permitted to do so so long as they claim that doing so would violate their “moral convictions.”
Obvious any kind of religious exemption will be narrower than for anyone who opposes a law on flexible moral grounds. The article looked at a case involving employer Eden Foods, which initially had claimed religious objection to providing birth control to employees because acknowledging that his real objection was elsewhere.
“I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Eden Foods CEO Michael Potter told a reporter. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” The Justice Department decided to stop fighting this suit, effectively handing Eden Foods a victory). In a legal regime permitting moral objections, however, Potter’s general disdain for government is probably enough to prevail. Indeed, then, under the proposal, any employer could ignore the requirement to provide birth control coverage to their employees by claiming that they have a moral objection to government action generally.
Hey, maybe we should extend this principle to other areas. Perhaps I shouldn’t have to pay income taxes if they are used for proposals to which I have moral objection — like weapons or increasing the size of the military, or on marijuana enforcement in states where it has been decriminalized, or for protection of the Trump sons in pursuit of profit around the globe.
If the Team Trump authorizes the change, let’s hope the White House acknowledges the real effects and stop calling itself a champion for women.