Trump Administration May Finally Be Reversing the Birth Control Mandate

A rule is under review that would (reportedly) relax the hotly debated requirement.


Little Sisters at SCOTUS
Stephanie Slade

Of the many questionable provisions of the Affordable Care Act, the most controversial was undoubtedly the so-called contraception mandate. It has been the subject of two Supreme Court cases already, and if The New York Times is correct, it may spark a third in short order. While the earlier challenges were to the mandate itself, however, this time, the dispute will be over the Trump administration's efforts to do away with it.

The Office of Management and Budget is currently reviewing E.O. 12866, an interim final rule that the Times reports would "roll back" the regulation. This would almost certainly set off yet another legal battle:

Gretchen Borchelt, a vice president of the National Women's Law Center…said her organization was preparing a lawsuit to challenge the expected rule, and she cited several possible legal arguments.

If the Trump administration does not adequately explain and justify the rule, she said, it could be challenged as "arbitrary and capricious," in violation of federal law. In addition, she said, women could challenge it as violating a section of the Affordable Care Act that broadly prohibits discrimination in health programs that receive federal funds.

Ms. Borchelt also pointed to a little-known provision of the Affordable Care Act that says the health secretary shall not issue any rule that "impedes timely access to health care services" or "creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care."

The mandate was created by the Department of Health and Human Services under President Obama, and requires that virtually all employer-provided insurance plans (as well as all plans sold on the Obamacare exchanges) cover all forms of birth control—including those sometimes referred to as abortifacients. Exceptions were made for houses of worship, but not for private businesses or faith-affiliated nonprofits, even though a number of such groups object to participating on moral grounds. The former cohort (the "closely held corporations") won relief with 2014's Hobby Lobby ruling, while the latter brought its challenge before the high court last year in Zubik v. Burwell, better known as the Little Sisters of the Poor case for the order of Catholic nuns who have been party to it.

Earlier this year, Trump's Justice Department shocked many supporters of the president when it declined to drop the case against the Little Sisters and six other religious nonprofits. The outcry was swift, and Trump responded by issuing an executive order that many saw as foreshadowing a rulemaking to reverse the regulation altogether. Now, it appears the president may finally be making good on his repeated campaign-trail promises to ensure that religious groups not be coerced into doing something they view as sinful.

It's about time.

Ideally, the Department of Health and Human Services will eliminate the contraception mandate rather than just exempting a certain category of organizations from it. Better still would be for Congress and the administration to work together to liberate Americans from the long list of supposedly essential health benefits that the Affordable Care Act deemed us categorically too stupid to choose from among ourselves, thus forcing people to pay for coverage they may not want or even be physiologically capable of using.

Alas, that sort of freedom-maximizing outcome continues to seem unlikely.

NEXT: Supreme Court Rules 8-0 for Police in Major Fourth Amendment Case

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  1. I have it on good authority* that if the government doesn’t force EVERYBODY to pay for birth control then nobody can acquire it by any means whatsoever.

    *a bunch of Facebook randos

    1. I wonder how many of them would say the government violates the Second Amendment by refusing to issue us weapons and ammunition.

      1. Re: Michael Ejercito,

        I would answer that by saying that mandating something is not the same as “offering it for free” and that you should dust off a book on logic, read it and try to understand it, for a gawd-damned change.

        1. Because there is no such thing as ‘free’. Mandating that others pay for birth control would be no different than the government mandating that your job buy you a gun.

          1. Agreed. Now if you could only muster the same outrage about those mandated INS raids.

            1. I don’t see how the two are related. Nor, do I see how you can surmise that I am supportive of such raids. But, I guess Left libertarians are ultimately just progressives who have taken a macroeconomics course (though learned little beyond their love of Uber)

              1. Because you’re not a real libertarian unless you want to make damned sure people who live in the other side of an arbitrary line stay on that side. I mean anything else is basically communism. God forbid anyone hire or lease property to such aliens. Like, do they think they get to decide what to do with their property? They didn’t build that.

                1. What article or comments are you guys referring to?

              2. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

                This is what I do…

    2. It’s well known: “That which is not prohibited is mandatory.” If you violate this rule you get anarchy. Anarchy!

      1. Damn right! And a good thing too!
        Anarchists of the world, unite !!!!!

  2. The elimination of a mandate increases freedom.

    What is wrong with freedom?

    1. Those cunts are just pissed because they will be forced to pay for their own whore pills now.

      1. Whore pills? Was it your ex-wife or your daughter that got knocked up by a swarthy foreigner?

    2. “Can’t have freedom without ‘free’, duh.” -SJW

  3. Wait til we get fully nationalized health care. This battle is just a taste of what’s to come.

    1. Indeed. Every health care decision will become an ugly political battle. And the progtards are naive enough to believe that every such battle will go their way.

      1. While simultaneously saying things like “Why is our country so divided all of a sudden?” and “How did this get to be so controversial?”

      2. Because so far every battle HAS gone their way.

        The current Republican majority in both houses of the legislature, and holding the White House cannot pass a single bill; how will the ‘progtards’ loose after the traditional mid-term reduction in the legislature?

  4. she cited several possible legal arguments

    All of which should be laughed out of court in a sane universe.

  5. Legalize over the counter contraceptives. Make the pill just as acceptable as condoms. Problem solved.

    Leftist feminists don’t want women to have the same rights and freedoms as men, they want the State to be their provider and protector. They want the State to be their surrogate father and husband. Taxpayer provided contraceptives (and that’s exactly what this is) is not equal rights, it’s just another form of patriarchy.

    1. Indeed, feminists are merely pimps.

    2. p.s. I am not opposed to women choosing health care plans that do provide contraceptives.

    3. Legalize over the counter contraceptives

      We have been over this – women are not smart enough to be able to figure out which birth control they should be taking.

      1. Yeah, most bitches need a man to straighten them out anyway.

      2. Americans are not smart enough to study and choose the right healthcare plan for themselves. They are not smart enough to formulate a budget to prioritize that which is they can afford as necessity and that which is considered indulgence.
        We must give them free shit until the free shit providers cannot afford it anymore. Then equal misery will be shared by all. Then we can grill and eat those greedy providers of jobs and incomes and innovation and progress and wealth.
        That is how freedom works. The government gives you so much freedom that you have to ask them for more.

        1. The only real freedom you have are the chains in which government binds you.

        2. It’s already taxing enough to select among 23 different types of deodorant.

          1. Certain types of deodorants are effective contraceptives.

            1. And lack of deodorants can be as well…

              1. You don’t drink, do you?

    4. Leftist feminists don’t want women to have the same rights and freedoms as men, they want the State to be their provider and protector.

      Which is really ironic* coming from people who in all likelihood would describe themselves as “smart, independent, strong womyn who don’t need no stinkin’ man.”

      * It’s like Alanis Morisette and O. Henry had a baby and named it this exact situation.

      1. Yes, it’s ironic. But I see it everywhere on the left side of the feminist spectrum. Libertarian feminists don’t do this, but leftist feminists do indeed view the State as a proxy male provider. Which is doubly ironic since the State is in fact run by a male patriarchy.

  6. I can’t believe Trump is going to ban birth control! Get your IUD’s asap, ladies!

    1. You’re right. He is so scary.

      He wants to ban birth control, he wants to kill children and old people, he wants to ban gay people from the earth. He wants to kill old people and throw disabled people out on the streets. He actually staged the Syrian thing to make it look like he and putin aren’t friends. This guy is the devil.

      Meanwhile, the folks on the left are so benevolent, they want to provide healthcare for all and free medical services to most. It is so benevolent to have the government provide for everything and to save the planet form evil smoke belching factories and their capitalist profiteers. If we could just give the government more power, we could finally let them do it correctly. This stuff is not as expensive as the crazy right wingers say it is. After all, right wingers are like Nazis. Just like the Nazi’s – i.e National SOCIALISTS- were right wingers. All of these facists dictatorships are just like right wingers.
      The good thing is that increased government power never leads to misery or murder. I cannot think of one current example of totally leftists policies not leading to corruption, misery, and murder. Not One!

      1. Maybe Trump should go ahead and have the progtards all slaughtered. Right before his impeachment. Then we can have libertopia?

        1. If he would kill all the brain dead lefties, we could all go to the super bowl.

    2. I heard Trump is going to hire Romney to go take away women’s tampons.

      1. He has binders of used tampons?

        1. He accidentally pulled them out of all the pussies he grabbed.

          1. Wrong evil business man. They all do horrible things to woman because they are rich and lean towards business and free markets however.

            Meanwhile, I noticed a few left leaning individuals over on MLK today treating women like queens, behaving like fantastic fathers and generally espousing the type of morals and sound judgement normally reserved for such high minded gentlemen like bill Clinton and ted kennedy.

            1. Ah, I thought the “he” you were referring to earlier was Trump, not Romney who, as all goodthinkful people know, planned to putting all women into rape camps and forced to give birth in order to breed a new race of Mormon supermen.

              high minded gentlemen like bill Clinton

              +1 Bill Clinton’s Gentleman’s Club.

          2. You guys are fucking disgusting. I love you guys.

        2. +1 scrapbook full of beautiful memories

  7. Trump Administration May Finally Be Reversing the Birth Control Mandate

    I’m really looking forward to the calm, measured, non-hysterical response to this from the Progressives… /sarc

    1. Fuck them, I’m not going on any goddamn man-dates!

    2. I trust we shall receive a measured balanced reporting of this through our fourth estate, which after all, exists as the necessary check to government abuse and political misdeed.

      Much as we can count on the Federal Reserve to function as a non-partisan independent bank that serves to achieve the dual mandate of low unemployment and keeping inflation in check We can count our blessings that the FED has only decreased the purchasing power of the 1913 dollar to about $0.02

      Its these kind of non-partisan dealings we have counted on to help America reach such a solid and promising state via the great lord and savior Brak, the god damned retarded pimp, bama and his asshole predecessor, goerge bush and the rapist Clinton.

  8. I should make all y’all pay for my condoms then toss ’em in a drawer and never use them! Just for the lulz

  9. The wishy washy position taken by some so-called ‘libertarians’ with regards to the government forcing religious groups to violate their conscience will forever be a stain on a movement that truly stands for nothing anymore

    1. And with one voice they shouted… A chorus of rabble rabble rabble.

      1. Waka, I think you’ll find most libert’s are not in favor of the government forcing people and groups into stuff.

        1. Yeah I have idea which libertarians he’s talking about.

          1. “no” idea, even

            1. Cocktailpartytarians, the most diabolical libertarians of them all.

          2. Bill Weld, Gary Johnson, the entirety of the Niskanen Center, etc.

            A lot of people talk a big game, but then fold the first chance they get

            1. the entirety of the Niskanen Center

              I’m sure that’d be news to Kevin Vallier. But if the institution as a whole is guilty, it should be easy to provide a link.

          3. The fictional ones in his head.

            Mainly what he’s going for though is the ones who don’t love Trump and jack off to the thought of autarky and deportations.

    2. Did we read the same article? The one that says this?

      Ideally, the Department of Health and Human Services will eliminate the contraception mandate rather than just exempting a certain category of organizations from it. Better still would be for Congress and the administration to work together to liberate Americans from the long list of supposedly essential health benefits that the Affordable Care Act deemed us categorically too stupid to choose from among ourselves, thus forcing people to pay for coverage they may not want or even be physiologically capable of using.

      1. Nothing says insurance like:
        “everything is free when you need it. No need to plan ahead.”

      2. Read the article?! Pffft, what are you, some kind of fag?!

        1. We should make every american pay for the cost of a hip replacement and a triple by pass every year as part of their living wages and universal basic income. This utopia shit is starting to make sense.

          See all you need to do is throw check and balances out the window and borrow the money from future unborn generations.

          Time to hit the bar. Problem solved.

          1. The alcohol dispensing bar or the legal license dispensing one? Cuz either would work in this context.

    3. Perhaps I’m over-charitable. It has happened before. But it seems to me that most supposed libertarians who don’t take a strong position on the issue are not so much saying that it’s all fine and good, but rather taking a strategic position and picking their fights carefully.
      Then there are those, me included, who don’t like the focus on religious objections because no one should be forced to violate their conscience or even do something they don’t feel like doing, whatever their motivations or religious beliefs.

      1. I can only assume that “religious belief” has to be understood to include any sort of belief – I mean, how you could prove otherwise? Do I have to register my beliefs with the government in order to get them approved…?

        1. All conscience should be provided reasonable accommodation. You shouldn’t have to believe in an omnipotent wizard to be afforded conscience exemptions. But, the only way that can be achieved is by defending current existing conscience exemptions.

        2. If not already, you can damn sure count on that agency soon.

        3. I certainly agree with you on that. But I don’t think that’s how it actually plays out. Courts are always judging whether or not something is a legitimate or essential religious belief or practice.
          The way it should work, in my view, is that if anything infringes on anything that could be considered a religious belief or practice, then the law is invalid and should not be enforced against anyone, no matter what their actual religious beliefs and affiliations are.

      2. Whoa, whoa whoa. You can take your nuanced opinions elsewhere, fella. You’re either with us or against us, and that’s that.

      3. If incrementalism works for the lefties, why not for us? If religious freedom is the crowbar that cracks open the door for free association for all, I’ll take it.

        1. I’m not opposed to religious freedom arguments. I just worry a bit that they lead to more special privileges than they do broadly applied rights. It does seem like the courts and legislators are doing everything they can to avoid allowing religious liberty to lead to a general outbreak of respect for individual liberties.

        2. That’s one argument. It’s not the only one.

        3. That is the correct perspective.

          1. Never mind, there is only one argument.

            1. Instead of being snarky, provide use with the other argument

              1. Zeb’s enacted the labor already, providing two such arguments.

              2. I can think of a few:

                Perhaps incrementalism works better when it is used in expanding government and restricting certain freedoms than it does for expanding individual liberty. It’s hard to dismantle large bureaucracies, especially when some kind of social entitlement is involved. And that’s really where leftist incrementalism has been most successful. But all it takes to undo lots of incremental progress on freedom is one bad law or court decision, or a populist overreaction to some unpleasant event.

                Leftist goals are a different type of thing from libertarian goals, I would argue. So it isn’t necessarily a good assumption that the same tactics will work in achieving those goals.

                I do agree that if religious freedom cracks open the door to actual freedom of association, that would be great. But it is far from obvious that that is what will happen.

                1. “A few more”, even.

                2. So, religious accommodation has grown incrementally since its early beginnings. The Amish were only provided full accommodation from having to send their children to public school through the age of 16 in the 1970’s. Muslims have only been allowed to grow beards in prisons for the past five years. Sikhs have been allowed to wear turbans in the military only for the past three years.

                  You’re confusing ‘freedom of association’ with ‘freedom of conscience’. Religious accommodation may not lead to more ‘freedom of association’, but it has definitely expanded conscience exemptions and accommodation. The key now is to expand that beyond the religious. The conscience of all people should be reasonably accommodated, whether or not one believes in a deity.

                  Nonetheless, I find it hard to believe that limiting one person’s rights from government interference will ever lead to more liberty ever.

      4. The whole thing should be irrelevant anyway because part of being American with the protections of the constitution and the bill of rights is that no American shall be coerced into a contract. Which includes being forced to buy something right?

        John Robert’s sorry ass should have thrown the whole boondoggle out from the very beginning on that pretext alone. Along with the other leftist assholes on the bench.

        1. The government forces us to buy all kinds of stuff – education, roads, etc etc etc. That ship has sailed.

        2. It’s not being forced, it’s a tax on not having the coverage. Roberts said that if it were a compulsion, then it would be unconstitutional, and he said that if the tax were high enough, it would be a compulsion.

      5. If someone is picking t heir battles by avoiding 1st Amendment fights, what exactly are they saving their powder for?

        1. They’ll need that political capital to bomb Azerbaijan and procure subsidies for sorghum farmers or something.

    4. Yes, this is perhaps the most notable stain on the movement.

      1. Maybe not the most notable, but definitely the most revealing

          1. Thanks for proving my point

              1. *YOU’RE WELCOME*

  10. “”The mandate was created by the Department of Health and Human Services under President Obama,””

    Things created by department rule making, can be resended by department rule making. Something liberals seem not to understand.

  11. So the case before the Court is that the Executive cannot strike down law (the concept formerly known as, ‘legislation’) created by the Executive because Constitution?

    1. Well, see, if it was an actual rule adopted under the APA, then rescinding it involves going thru the same APA procedures & explaining why the facts have changed such that the reasons for adopting the rule no longer apply. The court struck down rescission of the air bag mandate because there seemed to be no good reason based on the facts.

  12. The Supreme Court should be forced to watch The Handmaids Tale before hearing this case.

  13. “Better still would be … to liberate Americans from the long list of supposedly essential health benefits that the Affordable Care Act deemed us categorically too stupid to choose from among ourselves”

    Hold on there. Follow…

    1. During his 2008 campaign, Barack Obama repeatedly assured us that if we liked our current health plans, we could keep them.

    2. The Ninth and Fourth Circuits have held this year that what a President said on the campaign trail is evidence of the President’s “true intent” behind a legal enactment and counts for more than the plain language of the enactment itself. See, e.g., the cases enjoining Trump’s travel ban not based on the words used in the executive order itself, but based on what he said during the two-year-long presidential campaign.

    3. The Obama regulations mandating supposedly essential health insurance benefits are therefore contrary to Obama’s “true intent” because they prevent us from keeping health plans that we liked but that did not contain the supposedly essential health insurance benefits. What the Affordable Care Act actually provides is irrelevant because Obama’s repeated and emphatic campaign statements about us being able to keep our then-existing plans, not the language of the ACA or anything Obama may have said afterward, is the REAL law.

    4. Accordingly, the Obama regulations mandating supposedly essential health insurance benefits must be struck down because they are inconsistent with Obama’s “true intent.”

    1. The difference, of course, being that Obamacare is a law passed by congress and not an executive order. And that they long ago stopped paying any attention to the parts of the constitution that should forbid the feds from getting involved in insurance mandates, while most still pretend to have some respect for religious freedom.

      That said, I do think that Obamacare should have been invalidated and the EO on immigration (the second version, anyway) probably was OK constitutionally.

      1. True, it was an act of Congress. However, Obama not only signed it into law, but he actively campaigned for its passage. Further, many congressional Democrats, who drafted and voted to pass the law, repeated Obama’s promise that we could keep healthcare plans in existence if we liked them. So the analogy still in existence if we liked them. So the analogy still holds.

    2. You think that the court’s are going to be bound to adhere to the logic of their past reasoning? The majorities are results oriented now. Look at the districting case in North Carolina last week. Thomas was really the only one who stuck to his guns despite which Team it benefitted.

  14. First Amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    We have a real problem here. We have a clash of interests between religious folks who are against contraception and abortion due to their religious beliefs AND we have religious folks who have no problem with either contraception or abortion, and then there are the rest of us in the middle who aren’t always so sure, but we believe in the insurance schemes that give some of us access to reasonable healthcare, at US prices of course. Whatever the solution is, allowing some religious folks to impose their beliefs on others is not okay. It sounds like you are defining those against abortion and contraception as ‘moral’ and everyone else as immoral, therefore not covered by the First Amendment. That sleight of mind won’t fly for many of us. Keep your religion and your dubious definitions OUT OF the lives of those who don’t agree with you.

    As for the problem of how to provide reasonable insurance to women for abortion and contraception, we aren’t there yet. AND males who are half the problem leading to abortion and the need for contraception — oh yeah, they need to shoulder half the costs of both.

    1. “allowing some religious folks to impose their beliefs on others is not okay”
      Not what’s happening.

      ‘AND males who are half the problem leading to abortion and the need for contraception — oh yeah, they need to shoulder half the costs of both.”
      So women should have to shoulder half my condom expenses? And pay for half their dinner for that matter too?

      1. Not to mention get your approval to kill the result. Or willing consent to support that result.

  15. Of course this “finally” is going against Libertarian free marketism and driving prices down on healthcare. So now women who need hormones for other medical reasons can no longer get them affordably. They will need special formulations of the exact same drug being mass produced cheaply as birth control but they will need a version that is covered, has much less demand and has to go through the $10B medicine approval process to sell the same drug approved for a small group. You will in turn pay more for healthcare to defray the costs, or even pay more in taxes to pay more for someone’s pre-existing condition with high risk pools. Someone who could otherwise work but you required to be poor so they could get healthcare.

    Face it Objectivist Libertarians you’re not.

  16. Insurance is supposed to be protection from unexpected, large financial disasters. What part of contraception is unexpected, and what part is a large financial disaster?

    We are no longer discussing health insurance, we are discussing pre-paid health care. Without the option not to purchase. In my feeble college trained (before the liberal takeover) brain, that constitutes a ‘taking’.

  17. Why not do the simplest thing: eliminate the need for a prescription, and make birth control over the counter? BC bills are among the safest of drugs from what I read,

    Requiring a presciption just jacks up the price.

    1. But that would be to easy.

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