Trump Administration Set to Defend Birth Control Rules That Pit Religion Against Women’s Health

Alicia Baker grew up in a deeply religious family. Her parents were leaders in their congregation. They took Baker and her sister on mission trips and instilled in them the importance of faith in action, a principle around which Baker has organized her life. She went to Christian schools and attended seminary, where she received her master’s degree. In 2015, she moved from California to Indianapolis to take a job with a church-affiliated nonprofit. And it wasn’t long afterward that she met Josh; the two fell in love and decided they should marry.

In anticipation of their nuptials, Baker, 28, knew she needed to be on birth control. The couple plans to have children, she says, but they’re not quite ready to take that step. Baker is still adjusting to life in the Midwest, the couple just bought their first house, and she still has graduate school loans to pay off. “We’re so excited to have kids one day,” she told The Intercept. “But right now it would be irresponsible for us to try to pursue that.”

Baker had been on birth control pills once for medical reasons, but the hormones had caused her problems. So when she was ready to start birth control as a means of family planning, she decided she should go with the copper intrauterine device, one of the most effective forms of long-acting reversible birth control on the market and the only one that does not use hormones. The IUD she chose is a small T-shaped piece of soft plastic wrapped with copper, which is toxic to sperm and thus prevents fertilization. “It looked like the best fit for me,” Baker said.

A framed engagement photo of Alicia Baker and her husband, Josh, in their home in Indianapolis.

But roughly a month after she received the IUD, she got a startling piece of mail. It was an explanation of benefits letter from her health insurance company, GuideStone Financial Resources, informing her that the IUD would not be covered. She would have to come up with $1,200 from her own pocket — and continue to pay for any future care associated with the device.

Baker was confused. There was nothing in the materials provided by her insurer informing her that birth control was not covered. More importantly, she knew that the Affordable Care Act mandates the provision of no-cost birth control.

After doing some research, Baker found the problem. Although her church-affiliated employer doesn’t have a problem with covering birth control, GuideStone, the insurance company her employer uses, does. GuideStone opposes IUDs, which it believes cause abortion because when used as emergency contraception, the device could keep a fertilized egg from implantation. But the vast majority of women use an IUD to avoid that situation altogether. Baker notes that she was required to have a pregnancy test before the device was inserted — a test her insurer was billed for.

GuideStone, an arm of the Southern Baptist Convention, is among more than 200 religiously affiliated employers or insurers that have balked at the ACA’s birth control mandate, arguing that the requirement to provide access to certain forms of contraception impinges on their ability to follow their faith. The insurance company, along with a number of other organizations, has sued the government seeking to protect itself from having to honor the mandate. The Supreme Court essentially put the litigation on hold last summer in anticipation that the organizations and the government could find a way to resolve the dispute.

Last month, the possibility of a compromise appeared to evaporate. On October 6, the Trump administration announced a new set of rules that instead upend the birth control mandate. Officials say they are meant to protect religious freedom, but practically speaking, they offer nearly every employer or insurer the ability to deny contraceptive coverage for nearly any reason.

To Baker, it was a frustrating situation. “I’ve been a Christian my whole life and I’ve studied the Bible a lot. And there is nothing that I have found in study or in the doctrine … that says birth control is inherently bad,” she said. “The decision to have children is the couple’s own, and when it is the right time.”

Baker has signed on as a plaintiff in a lawsuit filed October 31 by the National Women’s Law Center and Americans United for Separation of Church and State, which argues the Trump administration rules are unconstitutional. The stakes are high: Unless the rules are struck down, millions of women could lose access to no-cost contraceptives. While Baker was at seminary, a lot of her “classes were talking about faith in action and how we live out our faith,” she said. “This is a test of that at this moment.”

Isaiah 1:17 is a verse from the Bible that has played a key role in Alicia Baker’s belief in faith in action.

The Birth Control Mandate

Critical to the foundation of the Affordable Care Act is the promise that preventive health services are covered at no additional cost. That commitment was extended specifically to women’s reproductive health care under the Women’s Health Amendment, which requires insurers to cover an additional suite of services for women without cost sharing — including access to all Food and Drug Administration-approved methods of birth control.

It makes sense to cover birth control: Access to contraception reduces unplanned pregnancies and abortions and encourages birth spacing, which reduces the incidence of low birth weight and premature birth. Moreover, access to contraceptives promotes gender equality and is linked to greater educational attainment and increased earnings for women — gains that directly impact children and families.

The ACA’s birth control mandate — and its prohibition on sex discrimination in health care — was nothing short of a game-changer. Prior to the law’s passage, many insurers did not cover contraceptives, and women routinely paid higher health insurance premiums and had greater out-of-pocket expenses than men. The birth control mandate alone saves women roughly $1.4 billion per year.

Nonetheless, from the start, churches were exempt from having to comply with the birth control mandate. Church-related organizations — including nonprofits, universities, and hospitals — asked that they too be allowed to exclude contraceptive coverage, but the Obama administration said no. To extend the exemption that far would subject employees “to the religious views of their employer,” the departments of Health and Human Services, Labor, and Treasury stated in 2012. And limiting access to contraceptives would in turn reduce the “benefits of preventive care.”

Instead, the government devised a workaround: A church-affiliated entity could opt out by submitting a form to its insurance company or the federal government saying it objected to providing coverage, which then allowed the insurer or a third-party administrator to work with the government to provide birth control coverage directly. The solution was meant to acknowledge religious objections while providing a means to ensure that women were afforded seamless access to all mandated health services. In 2014, the outcome of a lawsuit brought by Hobby Lobby craft stores extended the opt-out workaround to closely held private corporations.

Despite the accommodations, a number of church-affiliated organizations, including GuideStone, remained unsatisfied. In a series of federal lawsuits, the groups argued that having to notify anyone of their objections essentially conscripted them into the process of providing the contraceptives they repudiated, thus placing an unlawful burden on their religious freedom. The Supreme Court heard the consolidated cases in early 2016 and kicked them back to the lower courts to see if there might be a way to settle the dispute.

In doing so, the court was not making any judgment about the merits of the case but was providing the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise,” while also ensuring that female employees “receive full and equal health coverage,” the court wrote in its brief opinion.

The plan didn’t work out. After negotiations and a period of public comment, the Obama administration concluded that there was “no feasible” way to guarantee women access to birth control as mandated under the law while granting an accommodation that would not require some form of notice from the religious organizations. It appeared the parties were at a stalemate.

President Donald Trump pats the shoulder of Sen. Rand Paul, R-Ky., while signing an executive order on health care in the Roosevelt Room of the White House in Washington, D.C., Oct. 12, 2017.

Broad Exemption Based on “Moral Convictions”

That changed in May, however, when Donald Trump issued an executive order signaling that the administration would be revisiting the birth control mandate with an eye toward vindicating groups like GuideStone. Just five months later, the administration announced “interim final rules” that expanded the contraceptive coverage exemption well beyond churches to include nearly any employer that objects to providing coverage based on religious belief or “moral convictions.”

The new rules, which went into effect immediately, made the workaround accommodation optional — meaning most employers or insurers could refuse to cover contraceptives without ever providing formal notice of their intention to do so.

GuideStone applauded the move. “This is indeed good news for all Americans who value the important role of religious liberty in our nation,” GuideStone President O.S. Hawkins said in a press release. “This new interim final rule … is not the end of the protracted legal battle endured by far too many ministries throughout our nation. However, it is a significant step in ending the years-long ordeal.”

The ink had barely dried on the rules, however, when a new round of lawsuits was filed. Attorneys general in California and Massachusetts quickly challenged the rules, arguing that they violate federal statutes and constitutional protections. Delaware, Maryland, New York, and Virginia have since signed on to the California action. Others soon followed, raising the same legal objections: Washington state filed suit, as did Pennsylvania; the Center for Reproductive Rights sued on behalf of Medical Students for Choice; a private school teacher in Colorado and the ACLU of Northern California also sued. And, most recently, the National Women’s Law Center and Americans United for Separation of Church and State filed suit on behalf of four named plaintiffs, including Alicia Baker.

According to the NWLC lawsuit, the new rules “effectively nullify the existing regulations requiring contraceptive coverage,” threatening access for all women, not just those working for religiously affiliated organizations. Under the ACA, discriminatory health care pricing for women was reined in, and more than 62 million women gained access to no-cost birth control. “This rule completely reverses that progress and reinstates the discrimination that the ACA was enacted to prevent,” Erika Hanson, a lawyer with the NWLC, told The Intercept.

In line with the other pending lawsuits, the NWLC and Americans United suit also argues that the rules were created in violation of federal law and are unconstitutional. For starters, they were promulgated in violation of the Administrative Procedure Act, which requires that the public have an opportunity to comment on any proposed changes. “This is a huge change in law, a very radical change, and they didn’t go through the public comment process,” Hanson said. The birth control mandate was adopted after years of deliberation and receipt of roughly 725,000 public comments. And there is no emergency situation that would allow the government to forgo the public process, she says.

Moreover, the rules didn’t change the foundations of the ACA, which still prohibits sex discrimination, a ban the new rules clearly violate, Hanson said. Singling women out for adverse treatment is also a violation of the equal protection clause of the Fifth Amendment.

At least equally important, the lawsuits allege, is that the new rules are a clear violation of the First Amendment’s establishment clause. Their very purpose is to promote, advance, and endorse a religious cause, the NWLC suit argues, and “excessively entangle the government with religion.”

The Trump administration’s response to California’s lawsuit is due November 29. That initial stance will likely be replicated in its responses to other suits challenging the new rules.

Alicia Baker with her husband, Josh, in their home in Indianapolis on Nov. 8, 2017.

Religious Freedom and Women’s Rights

GuideStone’s refusal to pay for Alicia Baker’s IUD was a “financial hardship,” she said. But she’s aware that she was still fortunate: She was able to save up enough to cover the cost — a relative luxury that other women cannot as easily afford. “I can only imagine how much more so … it would be for women who aren’t in the same economic station as I am,” she said. The realization that other women in need of care might be unable to afford contraceptives if their coverage was denied was one of the reasons Baker felt compelled to sue the Trump administration.

But she is also motivated by a desire to protect her religious rights. And the government’s current course is “gravely” concerning to her, she said, because casting the conflict as religious rights versus women’s rights threatens them both. “One of the founding principles of America is the separation of church and state. And for me, as a Christian, I love that. It means we get to express our views free from the state, and we’re protected because they’re not meddling in our affairs,” she said. “And vice versa, the government is protected by not having one religion control it.”

She worries that allowing the new rules to stand would jeopardize that core principle and harm millions of women. “If anybody hears my story, I want them to know that this is just my story,” she said. People should “talk to women in their own lives. Ask them about how this rule would affect them, how it currently does affect them, and what it means to them. Because I am not the only woman whose story needs to be told.”

Top photo: Alicia Baker reads the Bible in her home in Indianapolis on Nov. 8, 2017.