News Law and Policy

One Way to Resist Trump’s Bureaucratic War on Birth Control

Christine Grimaldi

The Trump administration views widely guaranteed birth control access as enough of an emergency to proceed without any feedback, telling the public that what they have to say doesn’t matter.

Do you know what a “comment period” is?

If you plan to push back against the Trump administration’s blow to the Affordable Care Act’s (ACA) birth control benefit, you better learn, fast.

Much of the resistance to the two-for-one special of President Trump’s White House and the GOP-led Congress has manifested in busy phone lines. From California to Iowa, from progressive coastal cities to the reddest of red landlocked towns, people overwhelmed the congressional switchboard to demand that their U.S. senators and representatives vote down repeated attempts to repeal the ACA, or Obamacare. The disability rights group ADAPT and people with disabilities repeatedly put their bodies on the line in sit ins and die ins, playing an outsized role in saving Obamacare.

Their efforts worked. Obamacare remains the law of the land. But that doesn’t mean Trump and company are done trying to undermine it. Reeling from repeated legislative failures, administration officials have picked up where congressional Republicans left off. They’re gutting key parts of Obamacare in an arena even less transparent than Congress—the federal agencies.

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Behind the scenes, the agencies are working, separately and together, to unravel the web of regulations that are necessary to enforce and uphold any law. Key Obamacare regulations, among them the popular birth control benefit, face death by a thousand cuts in an ongoing regulatory war that stands to leave 62.4 million cisgender women and an untold number of transgender and gender nonconforming people without widely guaranteed access to contraception without a co-pay.

People who identify with the resistance can’t expect to have the same direct effect on unelected bureaucrats, some plucked straight from extremist anti-choice groups and anti-LGBTQ hate groups, as they did on their elected officials. But resisters can still make a difference, a big one, by submitting comments registering their displeasure with the Trump administration’s bombshell counter-regulations, which provide religious and moral cover for any employer or university to opt out of contraceptive coverage in their health insurance offerings.

The Administrative Procedures Act (APA) requires the federal government to open the rule-making process to comments from the public. The relevant agencies must consider those comments in deciding whether to finalize a rule as proposed or incorporate the public’s suggestions, especially if certain themes emerge. And even if the agencies don’t abide by the feedback, they must respond to it, explaining themselves in the final rule or risking the rule’s future in the courts.

Of course, there’s nothing typical about how the Trump administration is proceeding with the federal rule-making process curtailing Obamacare’s contraceptive access, credited with saving women $1.4 billion on birth control pills alone in 2013. The U.S. Department of Health and Human Services (HHS), the U.S. Department of Labor, and the U.S. Department of the Treasury took the unusual step of issuing the counter-regulations as “interim final rules” effective immediately rather than after the comment period closes.

The three agencies’ approach is rare in the world of federal rule making, exposing it to procedural and substantive attacks in the courts. The APA provides a “good cause” exception for emergencies, according to a nonpartisan Congressional Research Service report. Trump’s anti-choice administration apparently views widely guaranteed birth control access linked to the lowest abortion rate in decades as enough of an emergency to proceed without any feedback, telling the public that what they have to say doesn’t matter.

Why, then, is it still important to submit comments?

Because the APA prevents unelected bureaucrats from acting in a vacuum. In a government by the people, for the people, the Trump-era HHS, stacked from top to bottom with anti-choice extremists promoting the so-called rhythm method over effective forms of birth control, can’t completely ignore the will of the people. And the reality is that the majority of the people, across party lines and various polls, consistently support Obamacare’s birth control benefit.

“There’s value in hearing from individual people impacted,” Jamille Fields, a Planned Parenthood Federation of America policy analyst, said in a phone interview. “The comments are no less an act of resistance than calling your member [of Congress], going to speak out at a rally, which we know people have been doing all year.”

People already have denounced the Trump administration’s interference in their birth control with fiery social media posts and the hashtag #HandsOffMyBC.

The comment period provides an official forum to express discontent and ultimately reveal the scope of public opposition to undermining the government benefit.

Comments are important for the American Civil Liberties Union, the Center for Reproductive Rights (CRR), and other advocacy groups to build their court cases against the administration. The National Women’s Law Center (NWLC) is preparing litigation, too.

Comments can get the agencies’ attention. When comedian John Oliver in May urged his Last Week Tonight viewers to save net neutrality, they flooded the U.S. Federal Communications Commission with comments—at least, they attempted to. The agency claimed its website subsequently crashed as a result of hackers but hasn’t produced any substantiating evidence; in mid-October, the U.S. Government Accountability Office announced it would investigate.

CRR guided Rewire through the timeline for the birth control benefit’s comment period, which ends at midnight on December 5.

“Put a calendar notification on your Google calendar right now, and remind yourself that December 5, you’re going to wake up in the morning and brush your teeth and eat your breakfast and submit your comment,” CRR recommended via email.

So, how do resisters make their voices echo through the weeds of federal policy?

Anyone, anywhere can turn to the Federal Register, the self-described “daily journal of the United States government” that publishes every rule and rule-in-progress. Telling the agencies to stuff the religious and moral exemptions is as easy as clicking the “Comment Now!” button for each counter-regulation on a companion website, regulations.gov, which bills itself as “your voice in federal decision-making.”

As part of the “Keep Birth Control Copay Free” campaign, the Women’s Equality Center, an advocacy group that assists reproductive rights players, created an online portal for comments that go directly to the Federal Register for both the religious and moral exemptions. The portal includes a draft comment people can edit or rewrite, or they can write their own. CRR’s website offers a similar comments portal. And groups like Medical Students for Choice have put their members and former members on alert, said Executive Director Lois Backus.

What should everyday resisters say, especially to oftentimes faceless federal agencies?

Personal comments are harder for administration officials to flat-out ignore, said Susan Inman, CRR’s senior policy counsel. “It’s harder for them to just lump objections together if people are raising very detailed and specific objections to those regulations,” Inman said in a phone interview.

Constituents confronted Republicans with stories helped save Obamacare from repeated congressional repeal efforts. Democratic lawmakers retold constituents’ stories in press conferences, floor speeches, and social media posts. And now, the comments, which will be publicly available on regulations.gov, can provide the same fodder for multiple audiences with a vested interest in saving birth control access.

“Anybody can pull an example and talk about it as a reason to rescind these regulations,” Inman said, pointing to a legislative effort by Rep. Diana DeGette (D-CO) and Sen. Patty Murray (D-WA) to block the administration.

“They’re going to have ammunition if individuals have posted publicly that they object to these regulations through this formal process,” Inman said.

What’s personal for one commenter may different for another, NWLC Senior Counsel for Reproductive Rights and Health Mara Gandal-Powers told Rewire.

“If you’re someone who works for an employer and you’re concerned about the coverage, then that’s one thing,” she said in a phone interview. “If you’re someone who is concerned about women’s equality generally, that might be what you want to talk about in your comment.”

Gandal-Powers said some may choose to share personal stories anonymously, given the public nature of the comments. She advised taking cues from advocacy groups in submitting comments to the agencies: “Making it personal is helpful, but hitting some of those big points about why the rule is bad is important. They hear that echoing in everything.”

There are stories that blend the personal with policy.

Alison Tanner “absolutely would have pitched in” to the comment period had the birth control benefit rollback happened when she was considering Georgetown Law. The Catholic university had already agreed to the Obama-era accommodation process that allows religiously affiliated nonprofits to avoid compliance with the birth control benefit after notifying the administration. The university’s insurer stepped in to fill the gap in coverage. Under the new counter-regulations, religiously affiliated nonprofits such as Little Sisters of the Poor and the University of Notre Dame get the full-blown exemption that applies to churches and other houses of worship.

Tanner may have decided to forego Georgetown Law, along with the opportunities and scholarships afforded to her. Instead, Tanner attended and graduated this year with honors.

Contraceptive coverage from Georgetown Law mattered to Tanner for a mix of personal, professional, and practical reasons that she outlined in an interview with Rewire. She was already older than 26, the Obamacare-mandated cutoff for young people to remain on their parents’ insurance. She did not want to face another unplanned pregnancy, as she had in her first year in an undergraduate environment that forced pregnant students from the dorms. Tanner chose abortion care.

Georgetown Law limits access to on-campus housing for students with families, according to Tanner, at the same time providing what she described as ad hoc arrangements for pregnant students to take their finals. One of Tanner’s pregnant friends, for example, had to take her criminal law final more than a week after her due date or lose credit for the course.

Today, Tanner is a fellow at Americans United for Separation of Church and State, one of the advocacy groups defending the birth control benefit in the courts. She knows what she would tell the administration and why it’s important for others to join the chorus of comments.

“Living with the looming threat of cancellation of your contraception coverage over your head while you’re also stressed about your exams, finding your job, paying off the hopefully not insurmountable amount of loans that you’ve taken out during law school, is really an added stress that unfortunately only female students would therefore have to face,” Tanner said.

“Commenting and letting the administration know about how these regs will personally impact you and your ability to attain the education you deserve is an incredibly important way to participate in this particular political time.”

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