According to a draft regulation leaked to Vox this week, all of the IUD preppers might have been onto something. After the election, liberal women took to the internet in droves to warn each other to get the long-acting contraceptive devices, free under Obamacare but pricey otherwise, implanted while they still could. If the draft federal rule is implemented, that option could be going away for some women soon: Their employers would soon be allowed to stop covering birth control entirely.
The Affordable Care Act made it so that all contraceptive methods had to be covered without a copay by all employers except houses of worship. After a series of court cases and rule changes under the Obama administration, some other religious institutions and “closely held” companies—such as the crafts retailer Hobby Lobby—were also exempted. They could file some paperwork with the federal government, and a third-party company would then directly cover birth control for their employees, without any involvement from the religious employer.
But some religious organizations, such as the Little Sisters of the Poor, say that even filling out that paperwork is a step too far. It makes them complicit in providing birth control, they argue, an infringement on their beliefs.
The new draft rule would change that, granting not just religious groups like the Little Sisters but all types of employers an exemption from the birth-control mandate. And the companies would not have to find some other way to provide the coverage, like through a third party. “That would leave women with no option,” says Andrea Flynn, a fellow at the Roosevelt Institute who focuses on reproductive policy.
The Trump administration hasn’t confirmed the legitimacy of the leaked draft. But The New York Times separately reported this week that the administration was considering rolling back the rule.
Under the new rule, if implemented as-is, religiously affiliated universities, tiny start-ups, and even publicly traded companies could claim to have a moral issue with birth control and simply change their benefits to stop covering it. This might be less of a blow for women who take relatively inexpensive, generic birth-control pills, but those seeking IUDs—which typically run in the hundreds of dollars—would definitely feel the impact. Just in the first few years after the Obamacare birth-control mandate was implemented, women saved more than a billion dollars on out-of-pocket contraceptive costs.
The new rule doesn’t apply to women on Medicaid, though that program will face cuts if the House Obamacare replacement bill passes, which would potentially affect birth-control access. And that same bill, the American Health Care Act, would allow states to change the “essential health benefits” they cover, so women who buy insurance on the individual market might lose access to free birth control in that way.
Conceivably, women could seek publicly funded sources of birth control, but the administration and Congress are currently attempting to slice away funding for Planned Parenthood, a major source of family-planning services.
The larger question about this rule, specifically, is: Will companies stop covering birth control?
Before the Affordable Care Act, 28 states required insurance plans to cover contraceptives, and 85 percent of large firms—whose plans don’t tend to be regulated by states—covered prescription contraceptives. However, many of those plans still required women to pay copays and deductibles.
At least 122 companies are currently suing the federal government over the requirement to provide birth control, so at least that many might leap at the opportunity to stop covering it. In 2014, Mother Jones profiled some of these groups, which include a military contractor that stamps Bible verses on its rifles and a car dealership owned by a born-again Christian. And though they are less vocal about the birth-control mandate, many big companies, including Tyson Foods and Chick-fil-A, have religious roots or founders.
According to the National Women’s Law Center’s Gretchen Borchelt, if you include nonprofits that have objected to the mandate, “tens of thousands of women” will be affected. About 10 percent of large nonprofits—those with more than 1,000 workers—have applied for the Obama-era exemption to the mandate, according to the Kaiser Family Foundation’s Alina Salganicoff. But only some of them have sued, saying they would have a moral issue with it, so it’s not clear that they would opt to cut off their employees from a basic preventive health resource entirely.
One hope for women might be that after companies start providing a benefit, “you let the toothpaste out of the tube,” as Chatrane Birbal, a senior advisor of government relations at the Society for Human Resource Management, put it to me. Employees get used to perks, and if you snatch them away, they might find other jobs. That would be especially true of companies that have a more tenuous moral case against birth control, or whose employees don’t subscribe to the same strict religious code that the proprietors do.
What’s more, for employers, it’s less expensive if employees avoid having babies than if they have lots of them by accident. “There are consequences to not providing access to contraception: childbirth, abortion, and indirect costs, such as more employee absenteeism and maternity leave,” Birbal said.
And there may come another check on corporate whims: The outrage of half the workforce. “Employers are going to be hesitant to pick benefits that will help one gender over another,” Birbal said. “That’s an HR nightmare that would reduce morale.”
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