Analysis Contraception

Contraception: Expand Access, Not Exemptions

Jessica Arons

A broad religious exemption for contraceptive coverage would go too far, depriving millions of women of an important health benefit. Instead of expanding exemptions, we should be expanding access to affordable care.

This article is cross-posted with permission from ThinkProgress Health.

As the Obama Administration debates whether to expand an exemption to a new health insurance requirement to cover all FDA-approved methods of contraception, there are some important facts to keep in mind:

– The average woman spends five years pregnant, postpartum, or trying to get pregnant, and at least 30 years trying to avoid pregnancy.

More than 99 percent of women of reproductive age who have had sexual intercourse have used at least one method of family planning.

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– Contraception is the most commonly prescribed medication for women ages 18 to 44

Eighty-eight percent of voters support access to birth control

– Approximately three-quarters of Americans agree that insurance should cover contraception

Fifty-eight percent of pill users rely on oral contraception at least in part for non-contraceptive reasons

Eighteen percent of women on the pill reported inconsistent use, such as skipping doses, as a cost-cutting measure

Under the Affordable Care Act, or the ACA, women will benefit from greatly expanded access to contraception—which has been shown to improve health. But this important consumer protection is at risk of being undermined by an unreasonably expansive religious exemption.

Congress recognized that cost was a major barrier for women in accessing care. In response, it passed the Women’s Health Amendment, which required health plans to cover preventive services for women with no cost-sharing such as co-pays. Contraception was included among the comprehensive list of services deemed preventive based on an assessment of their effectiveness by the Institute of Medicine, an independent body of experts that issues unbiased, evidence-based guidance on matters of importance to public health.

Indeed, the Department of Health and Human Services asked the IOM to determine which services should be covered so that there would be no question of political interference. HHS then adopted the IOM’s recommendations in full—but with one important exception. HHS exempted from the contraceptive-coverage requirement those organizations whose purpose is to promote religious values, who primarily employ and serve persons who share their religious tenets, and who qualify for a religiously-related non-profit tax status—in sum, churches and other houses of worship, church conventions, and the religious activities of religious orders.

But this exemption was not enough for anti-contraception forces. They went on the attack and pushed for a much wider exception that would include universities, hospitals, social service organizations, and potentially any religiously-affiliated non-profit organization.

While a main purpose of the ACA was to ensure that everyone has the same guarantee of a baseline set of health care services, the number of people who work for an institution that meets the proposed exemption is relatively small. The same cannot be said, however, for the numerous religiously-affiliated organizations in our society that employ people from many different faiths, as well as those with no faith, and serve the general public. Almost 800,000 people work in Catholic hospitals alone. Religious universities employ and teach around 2 million. Then there are the hospices, nursing homes, and non-profits that help victims of trafficking, people living with AIDS, children in need of adoption, and people struggling with addiction—fields that employ high numbers of women.

All of these workers, students, and their dependents would be affected by an expanded religious exemption. Millions of women could have their consciences—that tell them using birth control is the morally right thing to do—overridden by those who privilege an institution’s tenets over an individual’s. These institutions may be guided by sincere, religiously-informed principles, but they engage in secular activities, such as providing an academic education or long-term care services, and they are sought out for those services, not for religious teachings.

It is for these reasons that the proposed HHS exemption mirrors the most common exemption in the 28 states that already require employers to offer contraceptive coverage if they cover other prescription drugs and devices. And it is for those reasons that courts have upheld challenges to those laws, finding that a neutral, generally applicable law not targeted at religion does not burden the right to free exercise of religion. In fact, there is the possibility that a broader exemption would violate the law. The Equal Employment Opportunity Commission has found that the exclusion of prescription contraception from an employer-sponsored health plan constitutes sex discrimination because it only burdens women.

The small minority in this country that opposes contraception is entitled to its opinion and should be free to preach it as often as it wants. But this very dispute belies the fact that only a fraction of followers practices what is being preached. Only 2 percent of sexually active Catholic women, for instance, have not used some form of modern contraception. Contraception opponents are resorting to coercion where persuasion has failed.

Freedom of conscience is a bedrock American principle and religious exemptions can be a useful way to protect conscience, but they must be employed judiciously. Otherwise, issues of conscience become trivialized and turn into excuses for discrimination. If religious employers are allowed to object to contraceptive coverage now, will they one day be able to opt out of covering HIV services, HPV tests, health care for transgendered people, blood transfusions, or end-of-life care? If we are not careful, claims of religious liberty could be exploited by religious organizations to justify noncompliance with laws they prefer to ignore.

President George W. Bush tried to adopt an overly expansive “conscience clause” right before he left office. The Obama Administration wisely rescinded most of that rule, “based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services….” This should not be an occasion to reverse course. The pending regulation is the first to interpret and implement the Women’s Health Amendment and will establish an important precedent. Imagine where a more conservative Administration would go if we start with an expansive loophole that waters down the ACA’s important protections.

Most of us want to live in a world where all children are wanted, nurtured, and adequately cared for. Birth control enables women to plan their pregnancies and avoid being placed in the difficult position of having to decide whether to continue or end a pregnancy for which they feel unprepared. Family planning also results in better health outcomes for women and their children—a woman who has a planned pregnancy is more likely to be in better health when she gets pregnant and more likely to seek prenatal care, and children who are born at least two years apart are healthier, and possibly smarter.

A broad religious exemption for contraceptive coverage would go too far, depriving millions of women of an important health benefit. Instead of expanding exemptions, we should be expanding access to affordable care.

News Health Systems

Complaint: Citing Catholic Rules, Doctor Turns Away Bleeding Woman With Dislodged IUD

Amy Littlefield

“It felt heartbreaking,” said Melanie Jones. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

Melanie Jones arrived for her doctor’s appointment bleeding and in pain. Jones, 28, who lives in the Chicago area, had slipped in her bathroom, and suspected the fall had dislodged her copper intrauterine device (IUD).

Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.

“I think my first feeling was shock,” Jones told Rewire in an interview. “I thought that eventually they were going to recognize that my health was the top priority.”

The doctor left Jones to confer with colleagues, before returning to confirm that her “hands [were] tied,” according to two complaints filed by the ACLU of Illinois. Not only could she not help her, the doctor said, but no one in Jones’ health insurance network could remove the IUD, because all of them followed similar restrictions. Mercy, like many Catholic providers, follows directives issued by the U.S. Conference of Catholic Bishops that restrict access to an array of services, including abortion care, tubal ligations, and contraception.

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Some Catholic providers may get around the rules by purporting to prescribe hormonal contraception for acne or heavy periods, rather than for birth control, but in the case of copper IUDs, there is no such pretext available.

“She told Ms. Jones that that process [of switching networks] would take her a month, and that she should feel fortunate because sometimes switching networks takes up to six months or even a year,” the ACLU of Illinois wrote in a pair of complaints filed in late June.

Jones hadn’t even realized her health-care network was Catholic.

Mercy has about nine off-site locations in the Chicago area, including the Dearborn Station office Jones visited, said Eric Rhodes, senior vice president of administrative and professional services. It is part of Trinity Health, one of the largest Catholic health systems in the country.

The ACLU and ACLU of Michigan sued Trinity last year for its “repeated and systematic failure to provide women suffering pregnancy complications with appropriate emergency abortions as required by federal law.” The lawsuit was dismissed but the ACLU has asked for reconsideration.

In a written statement to Rewire, Mercy said, “Generally, our protocol in caring for a woman with a dislodged or troublesome IUD is to offer to remove it.”

Rhodes said Mercy was reviewing its education process on Catholic directives for physicians and residents.

“That act [of removing an IUD] in itself does not violate the directives,” Marty Folan, Mercy’s director of mission integration, told Rewire.

The number of acute care hospitals that are Catholic owned or affiliated has grown by 22 percent over the past 15 years, according to MergerWatch, with one in every six acute care hospital beds now in a Catholic owned or affiliated facility. Women in such hospitals have been turned away while miscarrying and denied tubal ligations.

“We think that people should be aware that they may face limitations on the kind of care they can receive when they go to the doctor based on religious restrictions,” said Lorie Chaiten, director of the women’s and reproductive rights project of the ACLU of Illinois, in a phone interview with Rewire. “It’s really important that the public understand that this is going on and it is going on in a widespread fashion so that people can take whatever steps they need to do to protect themselves.”

Jones left her doctor’s office, still in pain and bleeding. Her options were limited. She couldn’t afford a $1,000 trip to the emergency room, and an urgent care facility was out of the question since her Blue Cross Blue Shield of Illinois insurance policy would only cover treatment within her network—and she had just been told that her entire network followed Catholic restrictions.

Jones, on the advice of a friend, contacted the ACLU of Illinois. Attorneys there advised Jones to call her insurance company and demand they expedite her network change. After five hours of phone calls, Jones was able to see a doctor who removed her IUD, five days after her initial appointment and almost two weeks after she fell in the bathroom.

Before the IUD was removed, Jones suffered from cramps she compared to those she felt after the IUD was first placed, severe enough that she medicated herself to cope with the pain.

She experienced another feeling after being turned away: stigma.

“It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

The ACLU of Illinois has filed two complaints in Jones’ case: one before the Illinois Department of Human Rights and another with the U.S. Department of Health and Human Services Office for Civil Rights under the anti-discrimination provision of the Affordable Care Act. Chaiten said it’s clear Jones was discriminated against because of her gender.

“We don’t know what Mercy’s policies are, but I would find it hard to believe that if there were a man who was suffering complications from a vasectomy and came to the emergency room, that they would turn him away,” Chaiten said. “This the equivalent of that, right, this is a woman who had an IUD, and because they couldn’t pretend the purpose of the IUD was something other than pregnancy prevention, they told her, ‘We can’t help you.’”

Commentary Sexuality

Black Trans Liberation Tuesday Must Become an Annual Observance

Raquel Willis

As long as trans people—many of them Black trans women—continue to be murdered, there will be a need to commemorate their lives, work to prevent more deaths, and uplift Black trans activism.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

This week marks one year since Black transgender activists in the United States organized Black Trans Liberation Tuesday. Held on Tuesday, August 25, the national day of action publicized Black trans experiences and memorialized 18 trans women, predominantly trans women of color, who had been murdered by this time last year.

In conjunction with the Black Lives Matter network, the effort built upon an earlier Trans Liberation Tuesday observance created by Bay Area organizations TGI Justice Project and Taja’s Coalition to recognize the fatal stabbing of 36-year-old trans Latina woman Taja DeJesus in February 2015.

Black Trans Liberation Tuesday should become an annual observance because transphobic violence and discrimination aren’t going to dissipate with one-off occurrences. I propose that Black Trans Liberation Tuesday fall on the fourth Tuesday of August to coincide with the first observance and also the August 24 birthday of the late Black trans activist Marsha P. Johnson.

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There is a continuing need to pay specific attention to Black transgender issues, and the larger Black community must be pushed to stand in solidarity with us. Last year, Black trans activists, the Black Lives Matter network, and GetEQUAL collaborated on a blueprint of what collective support looks like, discussions that led to Black Trans Liberation Tuesday.

“Patrisse Cullors [a co-founder of Black Lives Matter] had been in talks on ways to support Black trans women who had been organizing around various murders,” said Black Lives Matter Organizing Coordinator Elle Hearns of Washington, D.C. “At that time, Black trans folks had been experiencing erasure from the movement and a lack of support from cis people that we’d been in solidarity with who hadn’t reciprocated that support.”

This erasure speaks to a long history of Black LGBTQ activism going underrecognized in both the civil rights and early LGBTQ liberation movements. Many civil rights leaders bought into the idea that influential Black gay activist Bayard Rustin was unfit to be a leader simply because he had relationships with men, though he organized the 1963 March on Washington for Jobs and Freedom. Johnson, who is often credited with kicking off the 1969 Stonewall riots with other trans and gender-nonconforming people of color, fought tirelessly for LGBTQ rights. She and other trans activists of color lived in poverty and danger (Johnson was found dead under suspicious circumstances in July 1992), while the white mainstream gay elite were able to demand acceptance from society. Just last year, Stonewall, a movie chronicling the riots, was released with a whitewashed retelling that centered a white, cisgender gay male protagonist.

The Black Lives Matter network has made an intentional effort to avoid the pitfalls of those earlier movements.

“Our movement has been intersectional in ways that help all people gain liberation whether they see it or not. It became a major element of the network vision and how it was seeing itself in the Black liberation movement,” Hearns said. “There was no way to discuss police brutality without discussing structural violence affecting Black lives, in general”—and that includes Black trans lives.

Despite a greater mainstream visibility for LGBTQ issues in general, Black LGBTQ issues have not taken the forefront in Black freedom struggles. When a Black cisgender heterosexual man is killed, his name trends on social media feeds and is in the headlines, but Black trans women don’t see the same importance placed on their lives.

According to a 2015 report by the Anti-Violence Project, a group dedicated to ending anti-LGBTQ and HIV-affected community violence, trans women of color account for 54 percent of all anti-LGBTQ homicides. Despite increased awareness, with at least 20 transgender people murdered since the beginning of this year, it seems things haven’t really changed at all since Black Trans Liberation Tuesday.

“There are many issues at hand when talking about Black trans issues, particularly in the South. There’s a lack of infrastructure and support in the nonprofit sector, but also within health care and other systems. Staffs at LGBTQ organizations are underfunded when it comes to explicitly reaching the trans community,” said Micky Bradford, the Atlanta-based regional organizer for TLC@SONG. “The space between towns can harbor isolation from each other, making it more difficult to build up community organizing, coalitions, and culture.”

The marginalization that Black trans people face comes from both the broader society and the Black community. Fighting white supremacy is a full-time job, and some activists within the Black Lives Matter movement see homophobia and transphobia as muddying the fight for Black liberation.

“I think we have a very special relationship with gender and gender violence to all Black people,” said Aaryn Lang, a New York City-based Black trans activist. “There’s a special type of trauma that Black people inflict on Black trans people because of how strict the box of gender and space of gender expression has been to move in for Black people. In the future of the movement, I see more people trusting that trans folks have a vision that’s as diverse as blackness is.”

But even within that diversity, Black trans people are often overlooked in movement spaces due to anti-Blackness in mainstream LGBTQ circles and transphobia in Black circles. Further, many Black trans people aren’t in the position to put energy into movement work because they are simply trying to survive and find basic resources. This can create a disconnect between various sections of the Black trans community.

Janetta Johnson, executive director of TGI Justice Project in San Francisco, thinks the solution is twofold: increased Black trans involvement and leadership in activism spaces, and more facilitated conversations between Black cis and trans people.

“I think a certain part of the transgender community kind of blocks all of this stuff out. We are saying we need you to come through this process and see how we can create strength in numbers. We need to bring in other trans people not involved in the movement,” she said. “We need to create a space where we can share views and strategies and experiences.”

Those conversations must be an ongoing process until the killings of Black trans women like Rae’Lynn Thomas, Dee Whigham, and Skye Mockabee stop.

“As we commemorate this year, we remember who and why we organized Black Trans Liberation Tuesday last year. It’s important we realize that Black trans lives are still being affected in ways that everyday people don’t realize,” Hearns said. “We must understand why movements exist and why people take extreme action to continuously interrupt the system that will gladly forget them.”

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