Controversy has clouded ACA contraception mandate

Oct. 18--With a new set of rules announced Oct. 6 by the U.S. Department of Health and Human Services, the legal battle over the Affordable Care Act's requirement that insurers provide contraception without co-pay now enters another phase.

The new HHS rules undercut the ACA's birth control coverage mandate. They are effective immediately, and are intended give employers who object to birth control more room to refuse contraception coverage to employees. Just as the ACA requirement was under legal attack, so now is the HHS policy.

"No American should be forced to violate his or her own conscience in order to abide by the laws and regulations governing our health care system," said Caitlin Oakley, HHS spokeswoman.

Under the ACA, or "Obamacare," birth control is classified as "preventative," so individual and employee plans are expected to cover the expense. The contraceptive mandate has always been controversial.

On Oct. 10, John Doak, Oklahoma insurance commissioner, welcomed the HHS announcement.

"I commend President Trump for keeping his promise to Americans to protect our religious freedom," Doak said. "The government should not force anyone to compromise their faith, and the new rules will allow businesses to focus on their goals and mission without fear of legal battles."

Oklahoma does not require coverage for birth control in health insurance policies beyond what is demanded by federal law, according to the Kaiser Family Foundation. But for the moment, anyway, Oklahoma women can obtain birth control pills, patches, injections and interuterine devices -- either free or at nominal cost -- at county health departments. The "brown bag special" also includes free condoms and educational materials.

The HHS announcement follows President Trump's May executive order that promised to protect religious freedom with "regulatory relief" from ACA coverages that contravene religious beliefs held by organizations.

A Supreme Court decision in the 2014 case of Burwell v. Hobby Lobby gives opponents of the ACA birth control mandate further reason to hope. The court ruled the 1993 Religious Freedom Restoration Act applied, and required the accommodation of religious beliefs of "closely held" businesses that might object to birth control.

"President Trump's new rules expand on this exemption in three important ways," said Dr. Daniel Savage, professor of political science at Northeastern State University. "First, the Hobby Lobby ruling only applied to churches, religiously affiliated nonprofits, and closely held businesses. The new rules allow exemptions to virtually any employer, even publicly traded corporations.

"Second, while the previous policy only recognized religious objections, the new rule recognizes non-religious moral objections. These first two changes greatly increase the number of employers who would be allowed to deny coverage of contraception to their female employees. Third, in the Hobby Lobby case, the Court emphasized that the effect of the accommodation on the corporations' female employees would be zero, because the women would receive equivalent coverage from third-party insurers. Under the new rules, the government drops any attempt to ensure that coverage is provided by alternative sources. Thus, many women who are receiving contraception coverage under the previous policy may now lose it."

Without the HHS rules, employers eligible for the birth control exemption were mostly churches and other religious organizations. A religious college or hospital could avoid directly providing the coverage if workers could still get contraception through alternate means.

The National Women's Law Center claims 55 million women receive birth control coverage with no co-pay each year in the U.S.

While supporters of the new rules might point to the religious freedom of employers, opponents might point to the religious freedom of employees. Which takes precedent? Is the door opened for an employer to refuse a hire based on religion?

Savage said opponents are using a pair of political arguments against the changes.

"Women will be forced by government to pay for the religious exercise of their employers," Savage said. "In essence, the employer's religious views are prioritized over the employee's medical needs. Many women use birth control pills, for example, for health needs beyond the prevention of a pregnancy -- from reducing menstrual pain, to preventing migraines, to treating acne. The number of unintended pregnancies, and therefore abortions, may increase substantially. This would be an ironic consequence given the Trump Administration's pro-life stand."

Savage expected legal challenges to attack the HHS policy on two constitutional grounds. He said a government rule allowing employers to impose their religious beliefs on their workers could violate the Establishment Clause of the First Amendment, and that targeting the ability of women, but not men, to access contraception could violate the Equal Protection Clause of the 14th Amendment.

"In the Hobby Lobby case, the court warned that its decision should not be misconstrued to mean that corporations must be accommodated for religious reasons, regardless of the impact of the accommodation on thousands of employees," Savage said. "So the legal suits that have been filed by states and organizations over the past week have a chance of being successful."

A Tahlequah Daily Press online poll asked readers: "Should women have access to free or low-cost contraceptive birth control, either through their employer mandate, or through an agency like Planned Parenthood or a county health department?" Among 40 respondents, 25 strongly agreed, and one somewhat agreed, while 11 strongly disagreed and three somewhat disagreed.

The TDP's Oct. 14 Saturday Forum on Facebook also asked whether insurers and employers should be required to provide birth control coverage.

"Take the focus off of using the prescription for birth control," wrote Jennifer Cole-Robinson. "Many women suffer from medical problems which the 'birth control' pill is the best treatment. If the conversation was framed in the manner of denying a prescription which only women use to treat a medical condition, would it be so decisive?"

Joshua Harris-Till wrote: "A lot of the men on this post personify the need for medical treatment to stay between doctor and patient. I would prefer having my taxes not pay for [pills like Viagra] but it, like birth control, should be handled by a medical professional and covered."

Jean Ann Wright believes employers should be free to offer whatever policies they wish.

"If they choose to delete birth control or male enhancement therapy as part of their insurance plan, that should be their choice," she wrote. "Just as it should be our choice to work for a company that offers or doesn't offer that option."

Check it out

For more Saturday Forum discussion on the contraceptive birth control issue, go to www.facebook.com/tdpress, and scroll down to the Oct. 14 discussion.

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