Can I Get Some Birth Control Pills With That Slushie?: Unpacking the Contraceptive Mandate Rollback

Cross-stitch birth control pills by Brooklyn artist Katrina Majkut (My’kit).

When Vox published the leaked draft of the Trump Administration’s final interim rule effectively gutting the Affordable Care Act’s so-called birth control mandate last Wednesday, journalists, activists, and even one outspoken nun were quick to blast the rule as a blatant attack on women’s rights and the ability to control their reproductive health. And the 125-page draft rule is certainly an assault on the bodily autonomy of any American who happens to have a uterus. But the rambling draft rule—which is still listed as pending on OBM’s website and which seems to have wholly skipped the requisite public comment period—is part of a larger, broader campaign waged by the Trump Administration and its right-wing allies.

To unpack the deep historical, religious, and conservative culture war roots of this sweeping effort to roll back access to safe, effective birth control, I turned to fellow RD senior correspondent Patricia Miller, author of Good Catholics: The Battle Over Abortion in the Catholic Church, and RD’s Remapping American Christianities editor Anita Little.

In this special roundtable, we talk about what’s in this new draft, how some Catholic leaders still think women can get all the birth control they need at a 7-Eleven, and why conservative religious men seem to believe that women should pay for sex.


Sunnivie Brydum: Under this new rule employers will no longer be required to request an exemption if they don’t want to cover contraception—they can just decide not to provide it, and say they had a religious or moral conviction if that denial is challenged. What do you see as the potential fallout from such a broad permission to deny an entire category of coverage? 

Patricia Miller: The most interesting thing about the astounding breadth of the proposed exemption is that it confirms what I and other opponents of the original, ever-expanding exemption suspected in the first place—that this was never about an actual conscience exemption as they have been traditionally understood, but was about allowing any employer to opt out of birth control coverage just because they don’t approve of birth control or don’t want to pay for what they consider “recreational” sex.

The Trump administration, with its usual lack of subtlety, has confirmed that by not even requiring employers to go through the motions of stating a religious or “moral” exemption.

SB: Yes! The condemnation of “recreational” sex was a piece that stuck out to me, too. And though the draft doesn’t explicitly say it, I think it’s safe to assume that category of “non-covered” sex includes same-sex relations or—dare I even offer—queer sex. I wonder where this policy leaves, for instance, trans men who have sex with cis men, and may need contraceptive or reproductive care generally assumed to be “for women.”

Anita Little: To echo some of what Patricia said, it shows the whole “religious exemption” stipulation for what it really is: a shell for interfering with the reproductive health of employees. This was never really about religion or “strongly held beliefs,” but more about slowly cutting away at the freedoms given in the birth control mandate of ACA.

I remember I had freshly entered the work force around the time the ACA was finally passed, and the relief among the many young women and people with uteruses I knew was palpable. For many people who use birth control not just for contraceptive purposes, but for health problems like endometriosis, knowing an employer couldn’t opt out of coverage was a breath of fresh air. My monthly birth control that I take for a medical condition went from $45 per month (not chump change for a young, broke person) to zero. Knowing that in the future, my health could be contingent upon the whims of my employer is disconcerting, and the removal of the moral exemption just makes it so much easier for employers to affect the lives of millions who need that access.

SB: So, is it fair to read this draft rule as the latest effort of the Trump administration to impose conservative Christian morality on the entire country?

PM: I don’t think it’s quite fair to read it as an effort of the Trump administration per se. Like so many other things, Trump jumped onto the “Little Sisters” bandwagon when he saw that it was useful to motivate a certain segment of the electorate. It’s probably more accurate to say that this is a now six-year effort on the part of the religious right—by which I mean both the Catholic and evangelical right—to impose “traditional” or conservative morality. But obviously the Trump administration is more than happy to do their bidding on this issue.

SB: Right-wing legal groups like Becket (which represented Little Sisters of the Poor in its challenge to the contraceptive mandate at SCOTUS), have claimed that this draft rule simply proves “that people can get contraceptives without forcing nuns to provide them.” But as Elle recently reported, a full third of American women can’t afford to pay more than $10 a month for birth control. How do you think this this assumption—that anyone who wants birth control can get it easily—will affect already marginalized groups, including young, low-income, undocumented, and LGBTQ people?

AL: As I’ve written before on RD here and here, marginalized groups, particularly low-income, non-binary women of color are disproportionately affected by birth control restrictions. These are society’s most vulnerable groups, and they are the ones least afforded the right of what to do with their bodies. The loss of the birth control mandate would put contraceptives out of reach for many of them. Those who are already living on the margins socio-economically and are barely scraping by will end up having to choose between their birth control or having enough for rent or electricity or food.

And with the current administration so hellbent on stripping away even more of our country’s threadbare safety net, the choices marginalized groups will have to make will become more and more difficult. If one does become pregnant due to lack of access to birth control, legislation like the Hyde Amendment makes it nearly impossible for a low-income person to exercise their constitutional right to abortion. Privileged white women usually have another option available even if the safety net isn’t there. Women of color, LGBTQ women, undocumented women, and low-income or rural women are the main ones who suffer from legislation like this because they had so few options to begin with.

PM: Cardinal Dolan, who led the first and fundamental round of the Catholic Church’s opposition to the mandate, famously espoused this idea that contraceptives are so widely available and so cheap that the mandate was unnecessary. He said “all you have to do is walk into a 7-Eleven or any shop on any street in America and have access to them.”

Opponents of the mandate have consistently belittled the idea that contraceptives are a significant health care cost for women despite the fact that, according to the Kaiser Family Foundation, birth control comprises between 30 and 44 percent of women’s out-of-pocket health care spending.

For marginalized groups, the impact is likely to be especially severe because funding for the contraceptive safety-net provider, Planned Parenthood, is also under attack. But the biggest effect is likely to be felt on access to the “LARCs” (long-acting reversible contraceptives) like IUDs and implants, since they are the most expensive. The insertion of an IUD costs about $1,000, and it’s no coincidence that the use of these methods has increased steadily since the contraceptive mandate was put in effect. According to the Guttmacher Institute, LARC use increased from 9% of women in 2009 to 12% in 2012, after the mandate went into effect. Increases in LARC use were especially notable among Hispanic women and women with no children, who tend to be younger women.

SB: How do you see this rule interacting with the Trump Administration’s (and rank-and-file Republicans’) ongoing efforts to weaken public assistance for health care for people with uteruses? 

AL: It shows that all these new bits of legislation are about punishing women and taking away their choices. If you don’t have control over your reproduction, you don’t have control over your life. By chipping away at the ability of a person to decide when/if they become pregnant, Republicans are ensuring a society where everyone won’t be equal, where half the population won’t have the tools to build the best futures for themselves and their families. It’s the reinforcing of patriarchy—plain and simple.

PM: Weakening or eliminating the contraceptive mandate seems to be a particular priority for the Republicans, probably because contraception is tied to the issue of sexual pleasure, and there are still lots of conservatives who don’t think women should be having non-procreative sex without “paying” for it—either in terms of shouldering their contraceptive costs outside of health insurance or getting pregnant.

SB: Is that belief—that women can’t enjoy or have sex without some sort of punishment—rooted in a particular theology? Or are we just dealing with standard male entitlement over women’s bodies?

PM: This had been a long-running theme ever since the movement began in the late 1990s to have insurers cover birth control. Until about 20 years ago, most insurance plans didn’t cover any kind of contraception, even if you had prescription drug coverage, on the theory that birth control was a “lifestyle” drug.

When state legislatures first began insisting that insurers cover contraceptives just like other drugs, many a male legislator stood up and insisted that he wasn’t going to pay for someone else’s sex life. I think the idea that prescription contraceptives aren’t really a necessity because they are linked to sexual pleasure remains powerful for many conservative men.

At the same time, the Catholic Church still literally teaches that one must always be open to the possibility of pregnancy resulting from sexual intercourse, so it’s easy to see that the Catholic Church’s opposition to contraception stems from this idea that women must pay a price for sex.

SB: Where does this rule leave those who want or need contraceptive coverage, but who work for employers who express a “religious or moral conviction” opposing reproductive healthcare? 

AL: It leaves them in a place in which they aren’t in control of their lives. They’re at the mercy of their employers instead of being the arbiters of their reproductive destinies. It takes a decision that is personal and private and makes it the business of someone’s boss.

PM: Well, I guess they could take Cardinal Dolan’s advice and go to 7-Eleven, although he seems to be unaware of any method of contraception other than condoms. The good news is the regulation was sloppily written (surprise!) and skipped several regulatory review steps, so there is a possibility it will be tied up in court for some time.

SB: What do you make of this sentence (excerpted below from page 34 of the leaked draft), which seems to lay bare how this administration prioritizes “religious liberty” over reproductive health care for more than half the country?

The Departments have concluded that the governmental interest in ensuring that the employees of such organizations receive contraceptive coverage as part of their employer sponsored health plan is less significant than previously stated.

PM: What will be interesting is what the courts will make of this statement, especially the “less significant than previously stated” part. Is the Trump administration going to argue that somehow women have less of a need for birth control than they did when the original rule was promulgated in 2011? That the existing barriers to access have magically disappeared?

And remember, when the Supreme Court sent the cases of the religious nonprofits who objected to the mandate back to appeals courts and instructed the parties to work together on some kind of agreement, it specified that such an agreement not only had to accommodate the plaintiffs’ religious objections, but also had to ensure women “receive full and equal health coverage, including contraceptive coverage.”

SB: That requirement is at the heart of what I suspect may ultimately doom this rule. The draft rule dedicates an inordinate amount of space to arguing, simultaneously, that women can get contraception (and abortions?) wherever and whenever they want, but also that the ACA didn’t actually make obtaining this care any easier for those in the marginalized categories the draft identifies. 

Take, for example, this excerpt from page 42:

Despite the Departments’ previous view that increased contraceptive access through a coverage mandate would reduce unintended pregnancy, other data indicates that, in 28 states where contraceptive coverage mandates have been imposed statewide, those mandates have not necessarily lowered rates of unintended pregnancy (or abortion) overall.

This statement pointedly ignores the fact that U.S. abortions are actually at a historic low. What’s more, the cherry-picked data referenced in the draft fails to offer any actual solutions for balancing the “moral or religious objections” to contraception with proven improved health outcomes that accompany access to preventive and reproductive healthcare.

Do you think the administration—or anyone at HHS or DOL, which allegedly drafted this rule—has any idea how to balance those competing ideals? Or is this draft a 125-page attempt to avoid answering that question entirely?

PM: The original exemption for religious nonprofits did balance the question of a “religious liberty” exemption with the need of women to have seamless, non-stigmatized access to contraception.

The whole point of this rule is to give the Catholic Church exactly what it wanted in the first place: that anyone should be able to self-exempt themselves from the contraception mandate for any reason and at any point without a balancing mechanism to protect the rights of women. It is specifically designed to allow (male) employers to deny contraception to female employees because they either believe that unmarried women shouldn’t be having sex, or that non-procreative sex is immoral, or that contraceptives aren’t really health care.

So, what is the appropriate role of religious conviction when discussing health care—which relies on science that sometimes directly refutes those convictions? 

PM: Unfortunately, this was the question that the courts were really reluctant to dig into. The assumption seemed to be that the basis of the plaintiffs’ beliefs should go unquestioned, even if it clearly contradicted established science.

This can be seen most clearly in the way the courts treated the claim that emergency contraception is an abortifacient, which is clearly a religious belief, not a scientific fact. Essentially the courts said that petitioners can make up whatever facts they want to justify a religious exemption and the courts won’t dig into them, basically treating knowable science as a religious belief.

Hobby Lobby and related cases have enshrined the belief that faith-based convictions trump science.