Clarifying the Debate: Trump’s Birth Control Rule

On Oct. 6, the Trump administration issued a rule allowing increased religious-liberty objections to contraceptive coverage under the Affordable Care Act.

The rule expanded the types of companies that can take a religious exemption to providing contraceptive care from only religious institutions like churches and small businesses to any employer. It also allowed for moral objections, not just religious ones.

Unsurprisingly, editorial boards and opinion pages on the Left were outraged and disparaged the decision, while those of the Right mostly praised the decision. Here is a breakdown of the arguments made on both sides.

The Conservative Argument

The National Review’s board of editors called this revision “both welcome and prudent,” framing the decision as a new step in the conflict between the ACA’s birth control mandate and the Religious Freedom Restoration Act of 1993.

The Supreme Court ruled in 2013 that the mandate was a violation of the 1993 Act in its initial form, and so the rule was revised. And yet, for National Review’s editors, the “avalanche of litigation” that followed indicates that the revised rule was insufficient, and thus required this further revision from the Trump administration.

The Daily Wire noted that very few women were likely to be affected according to the administration, citing the “Health and Human Services’ estimation that only around 200 entities will be impacted” and criticizing the “alarmist” response of left-leaning “mainstream” opinion writers.

Going further on this theme, the Weekly Standard’s John McCormack cited a 2010 Kaiser Family Foundation survey that found that 85 percent of large-employer plans had already covered contraception before the implementation of the Obamacare mandate in 2012.

He argued that it would be unlikely that employers would opt out of the mandate, writing that “it’s widely believed that contraception saves employers money.”

National Review’s Jane Scharl argued not only in support of the rule change, but more broadly  that the “progressives and feminists” on the Left are silencing the views of pro-life women.

In her view, the Left sees conservative women, no matter how free and rational their convictions, as “hive-minded morons brainwashed by the oppressive men in their lives.”

The Liberal Argument

In contrast to the Daily Wire and the Weekly Standard, the New York Times’ editorial board felt that the rule review “puts hundreds of thousands of women at risk of losing benefits.” The Times argued against the Trump administration’s argument (referenced by the Daily Wire) that “over 99.9 percent of the 165 million women in the United States” would be entirely unaffected.

Regardless of whether that estimation is correct, the Times wrote, the contraceptive mandate does significantly decrease the percent of women who faced out-of-pocket costs for birth control pills (less than 4 percent by 2014, according to the Kaiser Family Foundation), arguing that the rollbacks will “almost surely reverse years of progress” made there.

The Times also pointed out that the Obama administration mandate allowing insurance companies to provide coverage directly to beneficiaries at no cost to the employer would become optional — something that remained unaddressed by many conservative writers.

The Washington Post’s Ariana Eunjung Cha brought in data from the Guttmacher Institute that found that 58 percent of women who use oral contraceptive pills use them “at least in part for purposes other than pregnancy prevention.”

According to this data, 14 percent of women take “the pill” for solely non-contraceptive reasons, along with an estimated 762,000 women who take it without being sexually active.

The New York Times’ Gail Collins argued in her column that it seemed hypocritical for Republicans to simultaneously find abortion morally reprehensible and make it easier for female employees to be denied free contraceptive coverage.

Unsurprisingly, her piece contained several references to the recent resignation of former Pennsylvania Rep. (and pro-life Republican) Tim Murphy.

The Differences

First and foremost, there is a significant moral-cultural difference between the ways each side of the debate views sex, and consequently birth control.

Those on the Left tend to view casual sex (e.g. sex for the purpose of personal enjoyment and expressly not for the purpose of procreation) as entirely natural, and thus a good society should help enable its existence and proliferation.

Given that such sex is a natural and regular part of life, and that traditional heterosexual sex has an intrinsically discriminatory aspect (one of the partakers can get pregnant and the other cannot), birth control is a necessary societal provision to eliminate this discrimination.

Requiring women to pay for birth control for any reason (even religious liberty), then, is inevitably discriminatory. Thus, for the Left, birth control is a right and should be provided as freely as any other type of healthcare.

But for those on the Right, many of whom come from a more Christian-traditionalist point of view, casual sex does not seem to hold the same status. The Christian-traditionalist point of view would hold that the primary purpose of sex is to procreate, and while sex beyond that purpose may be enjoyable, there is no requirement that it be enabled by the state.

Choosing to have casual sex is a personal lifestyle choice that need not be subsidized by the taxpayer. Thus, for the Right, it is entirely sufficient that birth control be cheap and it does not need to be free.

But, as the Washington Post pointed out, the debate does range beyond sex and birth — many women take birth control pills for healthcare reasons that range far beyond pregnancy prevention.

Conservative editorial boards and opinion writers do not appear to have answered this point, though it seems likely they would tie it to an already-established opposition to the concept of any healthcare as a right.

Moreover, they would argue that the significant costs to religious liberty outweigh the marginal benefit to female employees — having free access to hormonal regulation — of those few companies that claim exemption under the new rule.

Regardless, the fate of the contraceptive mandate remains to be seen. Several different entities and individuals have sued the Trump administration over the rollback (the ACLU, attorney general of Pennsylvania and a school teacher from Denver), and its ultimate destiny will be decided in those courts.


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