Birth control is not one of Donald Trump’s issues. During the campaign, while he adopted Republican Party orthodoxy and took a position against abortion rights, he never much mentioned birth control, probably because he didn’t seem to care and voters generally want politicians to leave it alone.
But in office, Trump has surrounded himself with anti-birth control ideologues like Vice President Mike Pence and Health and Human Services Secretary Tom Price, which is probably why his administration has reportedly drafted a regulation that could undermine the Affordable Care Act’s birth control mandate by allowing any employer or insurer to opt out of covering contraceptives if they cite a religious or moral objection.
The rule is essentially Hobby Lobby on steroids.
Under current law, nearly all health insurance plans, including employer-provided plans, are required to cover birth control. Churches were always exempt from the rule, and the Obama administration created a series of workarounds for religiously-affiliated institutions that wanted to outsource that coverage to a third party. In 2014, after taking its case to the Supreme Court, Hobby Lobby also managed to carve out an exception for itself and other closely-held private corporations with religious objections to contraception.
The Trump rule as drafted would expand those exemptions to virtually any employer or insurer that claims an objection. “Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market,” according to the proposal, which was obtained and published this week by Vox.
If that sounds broad, it’s because it’s extraordinarily fucking broad. It amounts to an “exception for everybody,” Tim Jost, a health law professor at Washington and Lee University, told Vox. “If you don’t want to provide it, you don’t have to provide it.”
“I’m really disturbed that this is where they would be going, and that this is what their vision is for what birth control coverage should be,” Mara Gandal-Powers, senior counsel at the National Women’s Law Center, tells me. “The exemption is much broader than it was before.”
If implemented, the rule could rollback the Obamacare provision that extended no-cost contraceptives to 55 million women and saved a reported $1.4 billion on birth control pills in a single year. Beyond the potentially devastating public health consequences, it also gives employers and insurance providers an incredible amount of power to dictate the kinds of healthcare women can reliably and affordably access.
It’s unclear if this is the final version of the rule currently under consideration by the Trump administration, or if it has been or will be revised before being rolled out. All the same, Gandal-Powers says her organization is preparing for a legal challenge.
“We’re considering our litigation options,” she says, declining to get into specifics. “We think we have really strong claims to challenge this.”