Roosevelt Institute | Cornell University

Get Your IUD Now: Trump's Change to the Birth Control Mandate

By Evin RothschildPublished November 15, 2018

Birth control pills are pictured below.
The Trump administration has rolled out a new clarification on the Obama-era birth control mandate that was included in the Affordable Care Act. The nuanced history of who may abstain from the mandate and who is covered under the new rules can be misleading and the future consequences are unknown, but the broader implications of a religiously charged and intrusive rule concerning women’s health is ominous nonetheless.

              Hours after the Republicans retained control of the Senate and the Democrats seized back the House of Representatives during the 2018 midterm elections, the two new Trump administration rules on birth control were revised and finalized by the Department of Health and Human Services. Just over a year ago, Trump announced his plan to curtail the requirements established by the Affordable Care Act for employers to provide free birth control to their employees.  These rules were faced with a slew of lawsuits and court cases that have yet to be resolved.  On November 7, the Trump administration committed to follow through with these rules and set sixty days from now the start of when these new rules take effect.  The history of the mandate and implications of these new rules is widely misconstrued to the public. 

              As a part of the Affordable Care Act established by President Obama, businesses were required to cover insurance for their female employees that covered all contraceptive methods approved by the Food and Drug Administration, such as birth control pills and IUDs.  When this mandate was established during Obama’s time in office, an exemption was granted to religious employers.  A religious employer is defined as “an organization that has the inculcation of religious values as its purpose, primarily employs and serves people who share its religious tents, and is a nonprofit organization under sections of U.S. law that refer to churches, their integrated auxiliaries, and conventions or associations of churches and to the exclusively religious activities of any religious order.”  In response to this mandate, some universities and organizations sued the government in objection to the rule to provide contraceptive coverage due to religious beliefs.  The Supreme Court case Burwell v. Hobby Lobby was a win for conservative opponents to the contraceptive mandate,as it allowed the Hobby Lobby company to object to covering health insurance.  Under Obama era law, the government decided to pick up the cost for those denied health insurance by their employer, ensuring that those desiring birth control who are on a health plan covered by a suing organization have the access to it they deserve.  Therefore, despite Hobby Lobby’s rejection to comply with the mandate, female employees were still able to have access to free birth control through the government. 

            The rules that came out last October do not mention this same government third party system that has previously allowed women rejected from contraceptive coverage to obtain free contraceptives. These rules allow exemptions to the contraceptive mandate to any employer who have sincere “moral convictions" or “religious beliefs” that cause them to object to providing contraceptive coverage.  Originally, these rules applied to any company that may fall into these exemption categories, but the most recent finalized rules state that publicly traded companies and governments cannot be granted an exemption. The key concept that many have failed to realize is that many of these companies who will now qualify for official exemptions have already been objecting to giving their employers birth control. But in the past, the government picked up the slack to ensure that all women had contraceptive options. Now, this security net will vanish, potentially leaving thousands of women without access to free contraceptives.

              These new rules cause what I consider to be a slippery slope.  To begin with, granting this exemption to religious organizations may leave many more than expected without birth control. Already, universities like Notre Dame have been requiring students and employees on the health care plan to share in birth control costs, leaving college-aged women without free birth control, at a time where they may most need it. 

             Critics have complained that Obama’s original mandate interferes upon a religious organization’s right to practice.  Under the first amendment, church and state must be separated and the state may not be a barrier to religion unless they have a narrowly tailored policy with a compelling government interest.  The original mandate is both narrowly tailored and has a valid compelling government interest in keeping low income women in the workforce and allowing women to have control over their own bodies. Additionally, even the original mandate allows religious organizations to have an exemption from the mandate, but it also rightfully provides the government backing to ensure that women who want birth control can get it.

            The second rule takes it to a new level.  By including “moral convictions” in the list of exemptions, employers are now not even forced to show religious affiliation to qualify for an exemption.  Any person owning a non-publicly traded business could easily claim a moral conviction against birth control without any proof to back it up.  With a rule as vague as a claim for a “moral conviction” against birth control, the contraceptive coverage for women could dramatically decrease.  Whether or not this decrease is actually observed, the mere fact that a women’s access to contraceptives is no longer protected is cause for worry.  By not securing access to free contraceptives, it strips away a woman’s sense of independence and control. The loss of free contraceptives would be a major setback for low-income women in the workforce trying to provide for a family they plan to have, already have, or have no desire to have.  If a woman chooses to engage in sexual activity, whether a woman wants to have a family or not is not a choice for the employer to make: It is a choice for each individual woman.