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Supporters of contraception rally before Zubik v. Burwell, an appeal brought by Christian groups demanding full exemption from the requirement to provide insurance covering contraception under the Affordable Care Act, is heard by the U.S. Supreme Court in Washington DC., March 23, 2016.  © 2016 Reuters

(Washington, October 6, 2017) – Two new interim final rules issued by the Trump administration put many women’s access to contraception in jeopardy, Human Rights Watch said today. The Department of Health and Human Services rules exempt nearly any employer or insurer with religious beliefs or moral convictions against contraceptives from including contraceptive benefits in their health plans.

The first rule offers an exemption to employers based on “sincerely held religious beliefs.” The second extends a similar exemption to non-profits, closely held for-profit entities, and universities for “moral convictions.” Together the rules will reduce the ability of employees to access affordable reproductive health services. The rules effectively reverse what is known as the “contraceptive mandate” under the Affordable Care Act (ACA), which requires insurance coverage to include preventive health services to beneficiaries without cost sharing.

“Congress recognized the public health benefit of no-cost preventive care and experts recognized women need access to affordable contraception,” said Liesl Gerntholtz, women’s rights director at Human Rights Watch. “These interim final rules override expert opinions and may result in difficulties in preventing unplanned pregnancies for many women.”

Interim final rules become effective immediately upon publication. However, the department could alter the rules if warranted by public comments. The comment period will be open until December 5.

Under the Affordable Care Act, Congress delegated the authority to define the scope of reproductive health services to Department of Health and Human Services experts. A 2011 recommendation included all Federal Drug Administration-approved contraceptives, sterilization, and education and counselling as part of preventive health services.

The Executive Order Promoting Free Speech and Religious Liberty that President Trump issued in May 2017 laid the groundwork for the secretaries of treasury, labor, and health and human services  to consider issuing rules to accommodate conscience-based objections to the preventive-care mandate as it pertains to women—and women only.

Religious employers are already exempted from the contraceptive mandate. Religious non-profit organizations and certain closely held corporations have also been extended accommodations under which third-party insurers provide no-cost contraceptive coverage to employees directly. The rules released on October 6 substantially expand the exemption to include potentially any employer in the US. They also make the accommodation process voluntary, which could leave many women without even third-party coverage for essential family planning services.

Without the contraceptive mandate, some highly effective methods of birth control, such as intra-uterine devices (IUDs) and sterilization, could cost women more than $1,000, putting these options out of reach for many women. Affordable family planning options and contraceptive choice help to prevent unintended pregnancies.

Numerous studies have shown that contraceptive use helps enable women to complete their education, maintain employment, and financially support themselves and their family. These rules could create an insurmountable barrier to family planning services for many women, risking their long-term health and well-being.

Under the Religious Freedom Restoration Act, the US federal government must refrain from substantially burdening the exercise of religious beliefs without a substantial government interest. The government now asserts that “no compelling interest exists to counsel again us extending the exemption” and contends that the act requires it to accommodate these objections. This is a dramatic retreat from the government’s position under the Obama administration that the government had both public health and gender equality interests in guaranteeing cost-free access to contraception.

The Department of Health and Human Services acknowledges that the act does not protect nonreligious, moral objections. The government does not contend that it is required to accommodate such objections, but has simply chosen to exercise its regulatory discretion to do so.

“As important as it is to protect religious freedom, it should not be used as an excuse to deprive women of access to contraception,” Gerntholtz said. “The government should protect women’s rights to control their reproductive futures by rescinding these rules.”

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