The Supreme Court just gave its blessing to a wide range of companies refusing to offer their female employees health insurance that covers birth control, even when they could do so without compromising their religious or moral beliefs.
The losers in Wednesday’s decision are the millions of women whom Congress intended to protect through the 2010 Affordable Care Act, which requires new insurance policies to cover preventive healthcare services with no out-of-pocket costs.
Not that Justice Clarence Thomas, writing for the 7-2 majority, sees birth control as being contemplated by lawmakers. He wrote that nothing in the statute “even hints” that Congress intended for contraception to be covered. Seriously? What part of “preventive healthcare” for women would not include contraception? This ruling and that line in his opinion betray every woman in this country.
Granted, the Affordable Care Act called on the federal Health Resources and Services Administration to flesh out the details for which preventive services would be included in the mandate. Under the Obama administration, the HRSA rightly designated birth control as preventive care, while carving out an exemption for churches. It also designed an effective workaround for religious-affiliated employers to shield them from any involvement in contraceptives for their employees while still providing the coverage.
The HRSA continued to require birth control to be covered after President Trump took office, but it let any nonprofit or for-profit company that is not publicly traded completely exempt itself from offering such coverage if it had a “sincerely held” religious or moral objection. (The Trump administration later sought to extend free contraceptive coverage to those employers’ workers through federal family planning grants — with new strings attached that threaten to cripple the program.)
Ruling against the states of Pennsylvania and New Jersey, which had obtained an injunction against the new exemptions, the justices held that the HRSA has “broad discretion” under the Affordable Care Act to define preventive healthcare and decide which employers must provide that coverage.
But the government allowing just about any employer an exemption from birth control coverage still subverts the intent of the law here, which is to provide preventive care to every woman who has health insurance. Justice Elena Kagan, who concurred in the majority opinion, observed that nothing stops the lower courts from looking into whether the government’s rulemaking was unreasonable — which, she correctly suggested, it is.
According to the Guttmacher Institute, which tracks statistics on reproductive rights, 86% of women have used three or more birth control methods by their early 40s. For anyone to say that preventive care for women does not, de facto, include birth control is disingenuous and sexist. As the legal fight continues, the lower courts should make sure employers don’t just casually get a pass on providing health insurance coverage for birth control.
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