My Employer Shouldn’t Control My Contraception Decisions

by Leila Abolfazli, Counsel at National Women’s Law Center

On Wednesday, the Subcommittee on Health of the Energy & Commerce Committee held a hearing titled “Do New Health Law Mandates Threaten Conscience Rights and Access to Care?” If you are wondering how an HHS Interim Final Rule guaranteeing no cost-sharing coverage of contraceptives threatens access to care, you are not alone. The whole point of the regulation is to dramatically increase women’s access to contraception because it is critical preventive health care for women. In fact, it is not the new health care regulation that threatens access to care but the exemption HHS included in the regulation allowing certain religious employers to opt out of providing contraceptive coverage.

This exemption has no basis under the Affordable Care Act, the Constitution does not require it, and it takes away critical health care for many women. Despite these serious problems with the very existence of an exemption, a minority of people think the exemption does not go far enough. Against this backdrop, the Subcommittee convened the hearing to debate the exemption and proposals for expanding it to include a much larger group of religious employers, like hospitals and universities.

After attending the hearing, I think a better title would have been the question so aptly posed by Representative Schakowsky in her opening remarks, “Why should the conscience of an employer trump a woman’s conscience?” Because that is exactly the position the three witnesses in favor of expanding the exemption took during the hearing. Notably, these witnesses, representing three religiously-affiliated entities including Alliance of Catholic Health Care, Christian Medical Association, and the Archdiocese of Washington, D.C., paid no attention to the health benefits of the HHS regulation. Instead, their argument was: we provide all of these services, you should be thanking us, and don’t subject us to this regulation (even though it improves our employees’ health). They also gave veiled threats of all the bad things that would occur if the regulation took effect — like hospitals shutting down and physicians leaving the field in droves. By hiding behind this parade of horribles, the witnesses refused to acknowledge the basic fact that gutting this regulation harms women. They had no answer to Dr. Hathaway’s testimony that contraception improves health. They had no answer to the concrete, well-documented benefits of providing unburdened access to contraception, or Dr. Hathaway’s experiences of treating patients who face significant burdens in accessing contraception. They had no answer to the fact that virtually all women have used contraception at some point in their lives. They had no answer because they were there to represent the religiously-affiliated employers, not the women who are positioned to benefit so greatly from the regulation.

As Mr. O’Brien from Catholics for Choice succinctly stated in his testimony against expanding the exemption for religious employers , “[i]t is incredible to suggest that a hospital or an insurance plan has a conscience.” It is also incredible that all of this energy is being spent to take away one of the most significant gains in women’s access to basic preventive health care. As Representative Schakowsky said, allowing employers to opt out of the regulation “is counterproductive, unfair, and paternalistic.” This is not what the Affordable Care Act set out to do, and this is not what women and their families deserve.

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