New Birth Control Proposed Rule: What Just Happened?

Today, the Obama administration issued a new proposed rule regarding the contraceptive mandate under the Affordable Care Act. Many reproductive rights organizations are calling it a victory. Some advocates, not so much.

So what just happened?

1. The new proposed rule spurned lobbying led by the U.S. Conference of Catholic Bishops that would have made businesses eligible to opt-out of the contraceptive mandate. 

All along these men have been arguing that the owner of a Taco Bell, a craft store chain or any business should be able to dictate the terms of what private insurance companies will provide to beneficiaries. That didn’t happen today. No ifs, ands or buts. The Obama administration did not cave. This is probably why some reproductive rights organizations are calling the new proposed rule a victory.

2. The new proposed rule did slightly expand the religious exemption, at a minimum creating a new gray area that could cause some women to lose contraceptive coverage.

Prior to today, religious institutions (houses of worship) were exempt and religiously affiliated non-profits were not. In broad brush strokes this wording has not changed, but the details create cause for concern. Breaking this down:

Previous rule: Houses of worship are exempt. Private health insurance plans do not need to cover contraception, period.

New rule: No change.

Previous rule: Religiously affiliated institutions with a primarily secular purpose and population (including, for example, Catholic hospitals, religiously affiliated colleges) will offer a private health insurance plan that covers contraception, but the cost of contraception will be paid for only by the private health insurance company with no funds contributed by the objecting religiously affiliated institutions.

New rule: Religiously affiliated institutions may attempt to claim they are religious institutions just like houses of worship.

If the claim is accepted, private health insurance plans do not need to cover contraception, period.

If no claim is made, or if the claim is rejected, religiously affiliated institutions will offer a private health insurance plan that covers contraception, but the cost of contraception will be paid for only by the private health insurance company with no funds contributed by the objecting religiously affiliated institutions. So in essence it mimics the old rule, except with one new change: The college student or hospital employee or professor or beneficiary will receive a piece of paper informing them that the institution does not cover contraception, but their private health insurance company will.

3. Here are some additional points to consider about even a slight expansion of the exemption.

The U.S. Conference of Catholic Bishops and the greater “hey, you slut” anti-birth control community has proven itself to be extremely determined to continue the pre-Affordable Care Act practice of insurance companies discriminating against women by charging higher rates for contraception. It is reasonable to assume they will do everything they can to ensure as many colleges, hospitals and non-profits as possible are suddenly classified as churches or other houses of worship. It’s unclear in practice how they will do this, but one invitation ripe for strengthening their inevitable arguments could be discriminating in admissions or hiring against those who don’t share the religious beliefs of the university-wannabe-church, so that a larger percentage of the population is “religious.” Think about that for that for a second. And think about the federal dollars those schools and hospitals gleefully accept.

Most of this fight has centered around religiously affiliated hospitals and institutions. They are estimated to affect the private health insurance coverage of up to three million women. So while the likelihood that the “Mommy Wow! Your Hospital Is A Church Now” claims won’t fly in many cases is strong, the potential universe of those who could be affected in a worst-case scenario is huge.

The note to students and employees who keep their contraceptive coverage is weird. It’s weird and stigmatizing. It says to the 18 year-old women and men entering college, there’s something wrong with birth control and there’s something wrong with sexuality. We don’t do this to any other form of basic preventive care. We shouldn’t here, either.

Philosophically, it makes no sense to negotiate with the U.S. Conference of Catholic Bishops on the topic of contraception. Practically speaking, they discriminate against women so much they aren’t even allowed to take leadership. Further, 98 percent of Catholic women use contraceptives at some point – hewing to the 99 percent of the overall population. Morally speaking, they have decades of of rape and pedophilia crimes and cover-ups under their supposedly celibate robes. They have no standing to dictate public health and human rights on matters of sexuality.

Bottom line: The new proposed rule could have been worse, and thank goodness it isn’t. But we had made progress. As a country we need to keep moving forward and not backward. Eleven years ago I was a broke Georgetown University student with school-sponsored health insurance coverage, paying $110 out-of-pocket when I went to pick up my birth control prescription. Birth control is basic medical care — that $110 copay was discrimination against me as a woman. This wasn’t a theoretical conversation with Rush Limbaugh on one side and Planned Parenthood on the other. I wasn’t a slut. I just needed prescription contraception. It was me and my life. And today, with this new gray area and the inevitable Supreme Court case about the entire contraceptive mandate, it could once again be tons of other women and their lives.

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