A blight on birth con­trol

The Trump ad­min­is­tra­tion seems set on more un­planned preg­nan­cies.

The Washington Post Sunday - - SUNDAY OPINION -

THE TRUMP ad­min­is­tra­tion on Fri­day tore a big hole in an im­por­tant pub­lic-health law, erod­ing the fed­eral re­quire­ment that health in­sur­ance plans cover con­tra­cep­tion. The ad­min­is­tra­tion ar­gued that not many women will ul­ti­mately be af­fected. We hope that is true.

The con­tra­cep­tion man­date, which stemmed from the Af­ford­able Care Act, orig­i­nally of­fered an ex­emp­tion to churches and their closely con­nected or­ga­ni­za­tions — but not to re­li­giously af­fil­i­ated uni­ver­si­ties, char­i­ties, small busi­nesses and other groups that wanted no in­volve­ment in pro­vid­ing birth con­trol to any­one, and par­tic­u­larly not through the health plans they of­fered. Suc­ces­sive rounds of lit­i­ga­tion fi­nally pushed the ob­jec­tors and the gov­ern­ment close to a deal, in which re­li­giously con­scious groups could opt out of of­fer­ing con­tra­cep­tion cov­er­age in their in­sur­ance plans and fed­eral author­i­ties would find ways to serve em­ploy­ees still seek­ing birth con­trol. The Supreme Court last year sug­gested they could come to an ar­range­ment.

But rather than hash­ing out a fi­nal deal, as the court sug­gested, the Trump ad­min­is­tra­tion de­cided that the fed­eral gov­ern­ment’s in­ter­est in en­sur­ing women ac­cess to birth con­trol is not very im­por­tant, and there­fore sur­ren­dered to the ob­jec­tors. Uni­ver­si­ties, char­i­ties and small busi­nesses will now be able to ig­nore the con­tra­cep­tion man­date with­out do­ing any­thing but in­form­ing their em­ploy­ees that they will get no birth con­trol cov­er­age. They could al­low the gov­ern­ment to in­de­pen­dently ar­range con­tra­cep­tion cov­er­age for their em­ploy­ees — or for­bid such a work­around.

In fact, these new rules would ap­ply to prac­ti­cally any pri­vate en­tity that does not want to pro­vide con­tra­cep­tion cov­er­age, in­clud­ing ma­jor pub­licly traded com­pa­nies and health in­sur­ers them­selves. They would have to claim to have a re­li­gious ob­jec­tion, but that is not a high bar­rier. That is why, though the Trump ad­min­is­tra­tion in­sists that the man­date is still in force, the law has been deeply un­der­cut.

Although it ad­mits that it has cre­ated a huge new loophole, the Depart­ment of Health and Hu­man Ser­vices ar­gues that not many or­ga­ni­za­tions will take ad­van­tage. Only a few rel­a­tively small groups have chal­lenged the man­date in court. Many of the big­gest or­ga­ni­za­tions us­ing the work­around the Obama ad­min­is­tra­tion tried to im­ple­ment have no prob­lem with it and may con­tinue al­low­ing fed­eral author­i­ties to ar­range con­tra­cep­tion cov­er­age for their em­ploy­ees. And it is un­likely large, pub­licly traded com­pa­nies will now change their ben­e­fits pack­ages.

Even so, the ad­min­is­tra­tion es­ti­mates — very roughly — that tens of thou­sands, and per­haps more than 100,000, women will now have to pay out of pocket for their birth con­trol or look for help else­where. Oth­ers pre­dict more. The ad­min­is­tra­tion ar­gues that these women should seek out un­re­lated fed­eral pro­grams that pro­vide dis­counted or free con­tra­cep­tion. But this think­ing vi­o­lates the un­der­ly­ing logic of the man­date. Through­out the dis­pute over the law, the Obama ad­min­is­tra­tion ar­gued that women’s ac­cess to an es­sen­tial ben­e­fit must be seam­lessly in­cor­po­rated into the rest of their health plans. Cre­at­ing gra­tu­itous bar­ri­ers to con­tra­cep­tion will re­sult in more un­in­tended preg­nan­cies. We doubt that is what the Trump ad­min­is­tra­tion wants. But that will be the con­se­quence.

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