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.

Planned Parenthood Is Moving On From “Choice” And That’s Just Fine

Just days ago, Planned Parenthood announced it would back away from the “pro-choice” label and move toward a no-labels approach in advocating its support for abortion rights and family planning. The organization will instead focus on how the full range of reproductive health care is critical for the different situations women can find themselves in.

This is a great move. While no one should expect the term “pro-choice” to go away anytime soon, and it will likely serve as useful shorthand for support of abortion rights and family planning for a long time to come, the language has been limiting to the breadth and depth of advocacy for full human rights, particularly in matters of sexuality, particularly for women. Adding more tools and new terminology to the toolbox is something to applaud.

Personally, when talking about abortion, I have always preferred to say I support abortion rights. “Pro-choice” struck me as the sort of casual conversation mechanism, something that implied the decision to continue or not continue a pregnancy was something best done over a latte and a Sunday crossword. It seems that everyone but the most extreme anti-abortion rights folks grants that’s not the case — that the decision to have an abortion or continue with a pregnancy is not some, oh gee, no big deal, that women aren’t totally and breathtakingly shallow and stupid.

When we’re talking about abortion, it’s okay to say abortion and specifically to make clear we’re talking about rights to have an abortion, or not having rights to have an abortion and forcing pregnant women to die if they happen to find themselves in the wrong place at the wrong time. There is power in using real language.

For that matter, when we’re talking about contraception, it’s okay to say birth control or contraception. There is power in using real language here, too, especially when mainstream media outlets continue to perpetuate the U.S. Conference of Catholic Bishops’ complete and outright lie that no-copay contraception paid for by private insurance companies somehow includes “abortion-inducing drugs.” (Medical fact break: Contraception, including emergency contraception, works prior to pregnancy. Preventing pregnancy and ending pregnancy are two different things, boys.)

“Pro-choice” has been experienced as an economically limiting term, particularly since wanting an abortion and having a legal right to abortion has been prevented by discrimination in health care coverage (both private and public), forcing clinics to close to comply with million-dollar and medically unnecessary regulations, mandatory waiting periods that hit women far from clinics particularly hard, and other laws that make it impossible for many women to afford or otherwise get abortion. When federal and state governments bar coverage for abortion, “choice” is a term that applies only to those who can afford it: There is a lesser set of constitutional rights experienced by those who need abortions but must sell their cars, or go without groceries, or hope a local abortion fund has enough money to help.

Loretta Ross and others have for years pioneered a “reproductive justice” approach that resonates more with me. It is a more holistic, inclusive approach that deals not just with the right to abortion but also the right to parent, the right to adequate prenatal care, the right to respect raising children you may already have, the right to use affordable contraception, the right to dignified childbirth, and more. As an activist, and like many other millennial activists, reproductive justice is a shorthand umbrella term that resonates strongest with me.  It most comprehensively encapsulates what my activism is about.

Also as a pregnant woman, I have come to personally confront restrictions on abortion and reproductive health care in a new way. While I am happily pregnant, I am keenly aware of how being in the wrong place at the wrong time could get me into serious trouble. Restrictions aren’t about whether or not I want an abortion, they are not about my choice, they are not about one moment in time when I realized I was pregnant and contemplated what was next, they are about the fact that if I’m having a miscarriage, or really sick, or something else I can’t foresee happens … I could just die in a hospital because that’s what it means to be “pro-life.” Or because the National Right to Life Committee last year declared their “top legislative priority” to ban abortions at 20 weeks for women living in the District of Columbia, and I happen to be 20 weeks three days pregnant. Both of these are things House Republicans have been trying to pass. Further:

New research out from the National Advocates for Pregnant Women shows how anti-abortion rights, anti-birth control, and so-called “personhood” efforts are being used in practice to arrest and force treatment on pregnant women. Restrictions are not just restricting choice. They are restricting human rights, particularly for pregnant women and women who do not wish to become pregnant.

If you want a shorthand term, “pro-choice” is going to continue to work whether or not Planned Parenthood uses it. Chances are good I will continue to use it from time to time. More options are better and a healthy feminist movement of any kind, including a reproductive justice and human rights movement, is stronger with more approaches in the mix.

So that’s my take. How about yours? Do you prefer the term “pro-choice”? If you support reproductive rights, what language do you use?