Under the regulations issued by the Trump administration in early October, more employers, based on their religious beliefs or moral convictions, could choose to deny contraceptive coverage to their employees. In the Bay Area, women’s health professionals, researchers, and advocates—both legal organizations and nonprofits—are clarifying what these new regulations will mean for residents and filing lawsuits.
In general, local healthcare experts agree that the majority of California women will probably not be affected by these new regulations because of state law protecting contraceptive coverage. The segment of the population put most at risk by these changes are employees covered through workplace plans that are governed by federal, not state, law, an estimated 6 million Californians.
But these experts also agree that there’s a real risk of women misunderstanding the consequences of the regulations and not seeking needed care. “Fortunately for us, in the Bay Area, we have an existing structure of public clinics and information sources that are active in keeping the community informed about its services and access to those services,” said Dr. Robert (Nap) Hosang, an OBGYN and lecturer at UC Berkeley’s School of Public Health. “We’ll have to redouble our efforts to make sure that those channels continue to work efficiently.”
Since 2014, California has had a law called the Contraceptive Coverage Equity Act, which reinforces existing state and federal law regarding “contraceptive coverage equity,” according to the text of the bill. The law requires that healthcare contracts or insurance policies “issued, amended, or renewed on or after January 1, 2016,” provide “coverage for women for all prescribed and FDA-approved female contraceptive drugs, devices, and products, as well as voluntary sterilization procedures, contraceptive education and counseling, and related followup services.” The law also prohibits any delays or restrictions to accessing this coverage, and covers Medi-Cal plans.
“Most women in California are now protected from this Trump policy because of that 2014 law,” said Cheri Greven, director of public affairs for the division of Planned Parenthood that includes the East Bay.
But the California law, like its federal corollary, comes with narrowly defined exemptions for churches, religious nonprofits and religiously-affiliated universities.
The new restrictions will also affect people covered by what are called “self-insured plans.” Confusingly, these don’t mean plans that an individual buys through the public marketplace, nor plans for the self-employed. These are workplace plans in which, according to Healthcare.gov, “the employer itself collects premiums from enrollees and takes on the responsibility of paying employees’ and dependents’ medical claims.” People with this kind of plan are at risk of losing coverage because their plans are covered by federal law.
“If your employer offers self-insured plans, and they decide that they don’t want to cover birth control anymore,” said Greven, “then you, either as a woman or any dependent on your plan, now have to pay 100 percent out-of-pocket for birth control because it’s no longer covered by your insurance.”
Federal law was meant to protect those insured by these kinds of plans. Under a provision of the Affordable Care Act—the national healthcare reform bill signed into law by former President Barack Obama in 2010—most employers that offer health insurance are required to include free contraceptive coverage. The intent of this employer mandate was to “ensure women have seamless access to birth control without cost,” said Greven.
Under the original mandate, houses of worship could take an “exemption” to this if they religiously opposed to paying for contraception, according to a 2015 report for the Kaiser Family Foundation, a nonprofit headquartered in Menlo Park, which analyzes health policy in the United States.
Nonprofits that were religiously affiliated couldn’t take the full exemption—not providing the coverage at all—but could opt for an “accommodation.” The organization could cite a religious objection, and the duty of providing that coverage would shift to the insurer. That way, the company was relieved of responsibility, but the employees still received the required services.
“The Obama administration wanted to make sure that there was an accommodation for women that, say, worked for one of these entities, but still needed to access contraceptives,” Greven said.
This regulation was extended, according to the Kaiser Family Foundation, after the Supreme Court ruling in Burwell v. Hobby Lobby gave “closely held” (private) for-profit companies the option to take an accommodation as well.
The regulations issued by the Trump administration in October extend the availability of both exemptions and accommodations. In a press release issued by the Health and Human Services press office on October 6, the same day as the regulations, the federal Departments of Health and Human Services, Treasury, and Labor wrote that the rules would provide “conscience protections” to employers who have “sincerely held” religious or moral objections to paying for contraceptive or “abortifacient” services.
The change follows a suit brought by the Little Sisters of the Poor, a group of Catholic nuns devoted to the care of the elderly poor, challenging the Obama-era contraceptive mandate. Little Sisters filed a complaint in September, 2013, against those three federal departments and their heads. In the suit, their attorney argued that Catholic employers “are forbidden by their religion from participating in the federal government’s regulatory scheme to promote, encourage, and subsidize the use of sterilization, contraceptives, and drugs that cause abortions.”
The exemption offered under the original mandate allowed only “houses of worship” to fully opt out of providing contraceptive coverage, not organizations like Little Sisters. Rather, they were offered the accommodation—if they did not wish to provide these services, they would be provided directly by the insurer. But that did not resolve the Little Sisters’ concerns, the complaint states, “because it continued to force them to deliberately provide coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling.”
Through several op-eds for the New York Times, San Francisco Chronicle, and elsewhere, the Little Sisters have made it clear that their objection was not financial, but moral: providing these services through their health plan would violate their beliefs. According to their lawsuit, they “have been offered a stark choice: they must either abandon their Catholic beliefs … or they will be punished by the government with an array of fines and penalties unless and until they comply.”
But not everyone who works for Little Sisters is necessarily Catholic. At the time the complaint was filed, the two Little Sisters homes in Denver and Baltimore represented in the suit employed more than 50 “lay employees” who were, according to the lawsuit, “covered, along with their dependents” by Little Sisters’ Catholic insurer, Christian Brothers Employee Benefit Trust. At that time, the text of the suit asserts, the insurer covered “employees and dependents of more than 200 non-exempt Catholic employers throughout the country” with over “5,000 active employees.”
Their suit reached the Supreme Court in 2016, which issued a per curium opinion that May, sending the litigation, which remains active, back to the lower courts.
In May of this year, President Donald Trump signed an executive order that directed then Health and Human Services (HHS) Secretary Tom Price—who has since been ousted—to “reexamine” the contraceptive mandate, according to an HHS press release. Trump spoke directly to two sisters after signing the order, telling them that their “long ordeal” would soon be over.
But it wasn’t until the new regulations were issued in October that government officials seemed to be making good on the president’s promise.
Representatives of Becket Law, a non-profit that takes cases related to religious liberty and which argued the Little Sisters suit, did not grant repeated interview requests. But on October 6, they posted a press release in which senior counsel Mark Rienzi called the new rules “a victory for common sense.” Rienzi stated that the Obama administration had “pursued a needless and divisive culture war. It was always ridiculous to claim you need nuns to give out contraceptives. This new rule shows that you don’t.”
Writing in an op-ed published by the Deseret News, which is owned by the Church of Jesus Christ of Latter-day Saints, fellow senior counsel Hannah C. Smith wrote that the new rules “allow religious nonprofits — like the Little Sisters of the Poor — to avoid millions of dollars in fines because their employee health insurance plans exclude coverage for contraception, a practice contrary to Catholic doctrine on respecting human life.”
Despite the controversy over the contraception mandate, birth control use is extremely common among heterosexual American women. A National Health Statistics Report published in 2013 found that over 99 percent of women between the ages of 15 and 44 had used at least one form of contraception.
In a Gallup poll from 2016, 89 percent of those surveyed said they believed birth control is morally acceptable. In a 2012 poll from Gallup, 82 percent of Catholics surveyed and 90 percent of non-Catholics deemed it morally acceptable. Even back in 1965, Gallup found that “two-thirds of American Catholics” were “aware that the Catholic Church opposed birth control,” and that of these, 61 percent “believed the church would eventually sanction” its use.
According to the Centers for Disease Control and Prevention, the progestin implant and intrauterine device (IUD) are the most effective methods of reversible contraception, each with less than one out of 100 users becoming pregnant in a year. Methods with a higher rate of failure range from the injection, or “shot,” which has a six percent failure rate, to spermicide, with a failure rate of 28 percent.
But pregnancy prevention is just one of many uses for birth control. A 2011 study by the Guttmacher Institute, an organization with offices in New York and Washington that researches sexual and reproductive health, found that women commonly use contraception to combat irregular periods and menstrual-related disorders like endometriosis, fibroids, and polycystic ovarian syndrome. The study found that this was particularly high among teenagers, and that a third of teenagers who use birth control pills do so “solely for non-contraceptive purposes.”
Many experts are now voicing worries that the new rules—and misinformation about them—might create problems for women. Thanks to state law, most “employers will still be required to provide no-cost contraceptive coverage” to employees, said Phyllida Burlingame, reproductive justice policy director for the American Civil Liberties Union (ACLU) of Northern California. But she’s worried about the 6 million people with those self-insured plans governed by federal law. “It’s kind of an interplay,” she said. “There’s a strong state law, but there’s also this significant segment of the population that was covered under federal law, not state law, and they’re now vulnerable to having their coverage removed.”
Dr. Claire Brindis, a gynecology and reproductive sciences professor at UC San Francisco, was part of the Institute of Medicine panel whose recommendations were the basis for the Obama-era coverage mandate. “I’m concerned that some of this information may be misinterpreted,” said Brindis, of the new rules. She worries that women whose coverage won’t be affected will believe it has been, and so will not seek care, due to a lack of public information about who remains covered.
UC Berkeley’s Hosang, agrees: “Much of what we have to do is make sure people fully understand what the impact of the rule is and to help them not overreact and to seek services where appropriate.”
Women whose birth control is provided through county governments or clinics like Planned Parenthood—rather than an employer—will probably not be affected by the change, he added. “They can continue to turn up in the places that usually serve them,” Hosang said.
In the Bay Area and elsewhere, legal advocates have moved quickly to counter the new rules in court. The Attorneys General of California, Massachusetts, and Washington state have filed suits against the administration. The complaint filed by California Attorney General Xavier Becerra was amended in November to include Delaware, Maryland, New York and Virginia.
Becerra’s complaint describes the rules as “illegal,” because they “violate the Administrative Procedure Act, the requirement that the federal government disclose to Americans its process for changing policy.” The complaint alleges the new rules were “jammed through without the notice and comment period required by federal law,” that the Trump administration failed to give “a proper factual or legal basis for these rules,” and that they “undermine the fundamental guarantees” in the Affordable Care Act for women’s healthcare.
The complaint also alleges that the rules violate the First Amendment––which prohibits the government from favoring any one religion, or denying any person equal protection under the law––because, the complaint states, the rules would allow employers to “use religious beliefs as a right to discriminate against employees to deny them” federally-mandated contraception benefits, and would “specifically target and harm women.”
The Center for Reproductive Rights, headquartered in New York, is challenging the new regulations for the same legal reasons. According to a press release, their suit, filed in the District of Columbia, is meant to defend “the right to contraception.” In the statement, CEO Nancy Northrup is quoted saying that “restricting a woman’s ability to decide whether and when to have children by denying access to contraception is unacceptable, discriminatory, and unconstitutional.”
And locally, the ACLU of Northern California is waging its own legal battle. In October, the group filed a complaint in Oakland on behalf of its members nationwide and members of the Service Employees International Union, United Healthcare Workers West (SEIU-UHW), a group with 93,000 members across California. Like the other suits, the ACLU’s complaint states that the new regulations “violate the Constitution” because the religious exemption “endorses and promotes certain religious beliefs,” and because both the religious and moral exemptions “discriminate against women by singling out for disfavored treatment health insurance that women use and that is essential for women’s equality.”
Though the ACLU frequently defends religious freedom, in this case the organization is arguing that employers can’t force others to abide by their beliefs. “Religious freedom doesn’t give you the right to discriminate and impose your religious beliefs on other people,” said Burlingame. “There’s absolutely no reason in an employment context for employers’ beliefs to impact their employees in such a way that is detrimental to the health, well-being, and equality of those employees.”
SEIU-UHW representatives did not respond to requests for an interview.
Some experts think more lawsuits will soon follow. “We will see what happens in court about whether these changes are, in fact, legal. That said, the administration does have considerable authority to set the rules under the Affordable Care Act,” Adam Sonfield, Senior Policy Manager at the Guttmacher Institute. “We may see courts, unfortunately, deciding that this is within their rights.”
In Alameda County, officials are working to make sure services are accessible, regardless of the outcome of the lawsuits. Therese McCluskey, the perinatal services coordinator for the Alameda County Public Health Department, said they already have a campaign running, using “posters on 50 bus benches” to promote available family planning services. The department’s website also lists the county’s “family planning clinics, pregnancy tests, abortion, adoption, and vasectomy services,” McCluskey wrote in an email.
“Our focus is on prevention of unintended pregnancy, which was supported by the requirement that birth control be covered by insurance,” she wrote. Should fewer women be able to access birth control free of copays or other costs as a result of the new rules, McCluskey expects to see “an increase in unintended pregnancy, which leads to an increase in abortion and stress on families having children they didn’t plan for.”
When asked how Planned Parenthood might adjust to an increase in demand for contraceptive services, Greven said it was too early to speculate, but that Planned Parenthood would do “everything possible” to meet women’s needs.
“It should not be radical in 2017 that women have access to birth control, plain and simple,” said Greven. “It shouldn’t be radical that women’s healthcare coverage includes all facets of women’s healthcare. Your coverage should include everything you may encounter as a woman.”