Last month, the Trump administration took two significant actions to curtail women’s access to reproductive health care. On May 4, the president signed an executive order that expands the power of religious refusals in denying access to health care. The order limits the actions that the government can take against individuals and organizations who assert religious beliefs as a reason to deny their employees health care coverage—namely, contraceptive coverage. The order also gives Attorney General Jeff Sessions, a longtime foe of progressive efforts to promote equality and pursue robust civil rights enforcement, broad authority to issue guidance interpreting religious liberty into federal law.
And on May 31, an administrative rule leaked that, if proposed as written, would allow any organization—whether it be an employer, a university, or an insurer—to deny contraceptive coverage based on religious beliefs or moral conviction. Both efforts confirm that Trump is using the language of religious liberty to curtail women’s autonomy and access to contraception. Combined, these efforts threaten women’s ability to determine their own health care needs. They privilege employers’ religious beliefs over the rights of their employees and disregard the religious liberty of all women seeking access to no-cost contraception. Worse, the Trump administration seems to be promoting the misuse of religious liberty as a cynical strategy to exempt employers from laws with which they disagree.
The administration’s actions could dramatically alter health care’s legal landscape
The most dangerous precedent the Trump administration has tried to set is to conflate employers’ religious liberty and moral convictions at the expense of women’s health. Specifically, the leaked rule seeks to blur any distinctions between religious and moral objections, arguing that moral objections—whether they are rooted in religious beliefs or not—are sufficient justification for refusing to cover contraceptive care. This approach could open the floodgates to even more arbitrary action to deny women access to contraception and could dramatically change the legal landscape.
Both the executive order and the leaked rule undermine women’s broader access to comprehensive health care, namely preventive health services, under the Affordable Care Act (ACA). Eroding care afforded through the ACA is especially concerning given other ongoing attempts by congressional Republicans to reduce access to affordable, quality health care. The current debate around the American Health Care Act indicates possible targeting of Medicaid recipients and patients with pre-existing conditions. Taken together with attempts to reduce access to contraceptives, this reveals a wholesale attack on public health. The ACA took groundbreaking steps to ensure that all women have access to comprehensive preventive health care, including contraceptive services. Its passage and the accommodations determined by the U.S. Supreme Court in Burwell v. Hobby Lobby Stores Inc. and Zubik v. Burwell—both of which involved employers seeking exemptions to the contraceptive mandate based on their religious beliefs—created a system for religiously affiliated employers to opt out of providing contraceptive coverage while ensuring that all women, regardless of their employer, had access to this vital care through third-party insurers.
The leaked rule, however, effectively bypasses these protections by expanding the group of employers that can claim an exemption and broadening the kinds of beliefs that merit exemption, such that most employers and both religious and moral beliefs could be considered. This creates the potential for enormous loopholes that encompass far more employers.
Although the leaked rule specifically applies to contraception and related services, its reasoning could eventually be applicable to other women’s health services as well, such as sexually transmitted infection testing and maternal health care. This means that employers who have personal beliefs about certain kinds of health services or biases against women employees and their dependents would have the ability to opt out of providing a variety of critical health services. This could ultimately result not only in women being unable to access contraception but also in women paying for insurance that provides limited coverage.
Contraception is essential to women’s autonomy and economic security
Efforts to make the contraceptive mandate optional harm women’s health, particularly low-income women and women of color. In particular the contraceptive mandate of the ACA has helped women who do not qualify for Medicaid but need assistance paying for contraception. And more than 80 percent of black women, 91 percent of Latina women, and 90 percent of Asian women who are at risk for unintended pregnancy use contraception. Without no-cost contraception, most of these women would be unable to afford birth control.
All told, more than 60 percent of women of reproductive age use some form of contraception. A majority of women of faith who are at risk for unintended pregnancy use contraception as well. In fact, 68 percent of Catholics, 73 percent of Protestants, and 74 percent of Evangelicals use highly effective forms of contraceptives such as hormonal birth control. Many women use contraceptives because of their moral and religious beliefs about planning their families and being responsible parents.
Contraceptive coverage also strikes at the heart of most women’s economic security. It is estimated that women saved more than $1 billion in 2013 on birth control due to the ACA’s contraceptive mandate. The mandate provides contraceptives without a co-pay, which has helped reduce the number of unintended pregnancies. Research shows that without health care coverage, women are likely to forgo care in order to prioritize other financial needs such as food, rent, and child care. Furthermore, more than 50 percent of birth control pill users take the pill for other medical reasons such as excessive menstrual bleeding and acne. Under the ACA’s contraceptive coverage, women are able to make their own health care decisions—to take care of themselves and to plan their pregnancies so that they are in the best position to provide for their households.
The ACA ensures that all women have access to no-cost contraception as a matter of health and economic well-being. And any effort to deny access to affordable contraceptive care is an infringement on women’s rights and equality. In both its executive order and its potential administrative rule, the Trump administration has proven that it is willing to use the language of religious liberty to discriminate against and harm the health of millions of women. Despite his promise to ensure affordable, accessible, and quality health care to improve women’s lives, the president has grossly attempted to undermine the self-determination and future economic security of millions of women and their families.
Heidi Williamson is the senior policy analyst for the Women’s Health and Rights Program at the Center for American Progress. Claire Markham is the associate director for the Faith and Progressive Policy Initiative at the Center.