Should employers, including publicly held companies, have to provide their employees with birth control even if they personally oppose it?
The Trump Administration proposed rules in 2017 that would collectively have permitted more employers — including publicly traded companies — to opt out of providing their employees birth control coverage, by citing religious or moral objections. This attempt to weaken the Affordable Care Act, popularly called Obamacare, had been blocked for several years by lower courts.
In July, the Supreme Court allowed the rule to take effect. The decision was 7–2, not splitting among traditional ideological lines. Usually-progressive Justices Elena Kagan and Stephen Breyer sided with the court’s conservatives, although they did allow for the possibility that other similar legal challenges could succeed in a joint concurrence.
An estimated 70,000 women could be affected by the rules, which were issued by the Departments of Labor, Treasury, and Health and Human Services.
What the bill does
The Protect Access to Birth Control Act would repeal all three rules before they could go into legal effect.
It was introduced in the House on July 9, the day after the Supreme Court’s decision, as bill number H.R. 7517 by Rep. Diana DeGette (D-CO1).
What supporters say
Supporters argue the legislation protects women’s health and individual choice, upholding a key tenet of last decade’s health care reform law.
“A decision about whether to use birth control is one that should be between a patient and their doctor — and no one else,” the cosponsoring Democratic lawmakers, including lead sponsor Rep. DeGette, jointly said in a press release.
“Giving an employer the ability to interject themselves in that decisions — by limiting a patient’s access to free birth control — is unconscionable,” the Democratic lawmakers continued. “We aren’t going to sit back and allow this court, or this administration, to put the health and well-being of millions of Americans at risk.”
What opponents say
Opponents counter that the new rules recognize employers’ religious freedom under the First Amendment — and that employees can still get birth control on their own outside of their company’s health insurance plan.
“The rules are necessary to expand the protections for the sincerely held religious objections of certain entities and individuals,” the Administration’s Department of Health and Human Services said (page 238 of the linked PDF). “The rules, thus, minimize the burdens imposed on their exercise of religious beliefs, with regard to the discretionary requirement that health plans cover certain contraceptive services with no cost-sharing.”
“In addition, the rules maintain a previously created accommodation process that permits entities with certain religious objections voluntarily to continue to object while the persons covered in their plans receive contraceptive coverage or payments arranged by their health insurance issuers or third party administrators,” the department continued. “The changes being finalized to these rules will ensure that proper respect is afforded to sincerely held religious objections in rules governing this area of health insurance and coverage, with minimal impact on [the] decision to otherwise require contraceptive coverage.”
Odds of passage
The bill has attracted 137 cosponsors, all Democrats. It awaits a potential vote in the House Education and Labor, Energy and Commerce, or Ways and Means Committee.
Odds of passage are low in the Republican-controlled Senate.