Home / Blog / Article




January 14 2019

Judge Pauses Trump Administration Birth Control Rules

by Hadley Heath

Birth control just can't seem to stay out of the political news cycle (no pun intended). 

First, some background: When the Affordable Care Act became law in 2010, it gave the Department of Health and Human Services the authority to write regulations about insurance coverage for women's preventive care. As a part of that, HHS (under Pres. Obama) issued a rule that required all employers (of 50 or more workers) to provide health insurance benefits that covered all forms of FDA-approved birth controls with no copay. In response, the government faced a huge backlash from religious employers, including both private businesses and non-profit groups. There were hundreds of complaints filed, and eventually the Supreme Court heard Burwell v. Hobby Lobby in 2014 and Zubik v. Burwell in 2016, both of which narrowly ruled in favor of those challenging the HHS rule. 

Here's an excellent infographic from the Becket Fund explaining how many times the HHS rule was revised in response to concerns over religious liberty. 

When the Trump Administration took over at HHS, it immediately went to work revising the birth control rule to expand exemptions, not just for employers of a certain type, and not just for religious objections but also for non-religious moral objections. The first attempt got shot down in the courts because the Administration did not provide the public the opportunity to comment on the new rule. The second and latest attempt is now facing an injunction issued Sunday.

Federal judge Haywood Gillum, Jr., sided with 13 Democrat-led states who brought this latest legal challenge against HHS. He found that the new rules would have burdened these states. Basically, his analysis agrees with states that, should women lose access to employer-provided birth control coverage, states would suffer economic harm as those women turned to state-based programs, either for help paying for birth control or unplanned pregnancies. 

What a shame that in 2019 women are essentially witnessing in this case a debate over which level of government should take responsibility for our birth control. Ultimately, birth control is an individual responsibility, and it would best be provided directly to women, not via employers or insurers who, as we are seeing in these rules, can be hurdles to access rather than bridges. If women take personal responsibliity for birth control, this means we also have personal freedom over this area of our life. We should leave the bosses out of it. 

It would be a much better policy to abandon the idea that government (at any level) should force insurers to cover birth control, or any routine healthcare treatment. Insurance would be much more affordable if we paid premiums only to protect us from unexpected healthcare costs. And of course, for those who truly face difficulty affording family planning services and drugs they need, we have anti-poverty programs that can assist. 

But it's worth noting that the original HHS rules would have forced even Catholic nuns to pay for birth control coverage for their employees, and it would have provided first-dollar coverage even for women who earn millions of dollars. The original rule was too broad and did not find any balance between the moral concerns of employers and the interests of women workers who would like their insurance plan to cover birth control. Now HHS is working to find better balance. Democrat-led states nor the courts system should stand in the way of improving this policy. 

 





Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
Follow us