A Truce in the Battle Over Birth Control

But the war isn't over.

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Two new rules concerning employer-sponsored health insurance and contraception coverage, set to take effect in January, will finally allow conscientious objectors to opt out of the now-notorious Obamacare contraception mandate. But the feds shouldn't consider the matter settled until women can buy birth control over the counter.

Under the first new rule—issued jointly by the departments of Health and Human Services (HHS), Treasury, and Labor—churches, religious orders and auxiliaries, nonprofit and for-profit organizations, nonpublic institutions of higher education, and "other non-governmental employers with religious objections" are allowed to opt out of offering insurance plans that pay for birth control "on the basis of sincerely held religious beliefs."

Insurance issuers can also opt out if all of the companies they provide plans to are exempted. And individuals can opt out of being insured by a plan that includes contraception coverage to the extent that their employer and insurance issuer are willing to provide another option.

Under a second new rule, all of the above organizations save publicly traded businesses can get an exception based on "non-religious moral convictions opposing services covered by the contraceptive mandate."

Freedom of conscience is good news. The bad news is that HHS et al. estimate the changes will leave anywhere between 6,400 and 127,000 women without coverage for some or all forms of contraception. That's an undesirable result, even if you don't think the solution is forcing others to subsidize the service—which is why it's time for the Food and Drug Administration to allow hormonal birth control pills to be sold over the counter.

Such a change would drive down costs and increase ease of access for women regardless of whether they're insured. In conjunction with the repeal of other unnecessary regulations about how birth control can be prescribed and obtained, new low-cost services for women's health could flourish. (Emergency contraception, one of the most controversial forms of birth control among those with religious objections, is already available without a prescription in the United States.)

Freeing birth control pills from prescription-drug status is an idea with broad support from Democrats and Republicans as well as from the American College of Obstetricians and Gynecologists. With the contraception mandate settled, it's time we set our sights and energies on the root of the problem: Birth control is harder for women to get and to use than it should be. Making it available without a prescription would solve problems a mandate never could.