On Oct. 5, President Obama came to George Mason University in Virginia, where I teach law, to generate support for the health care mandate requiring employers to buy health insurance that covers contraception, sterilization and drugs that cause early abortions.
"Let me tell you something, Virginia," he said. "I don't think your boss should control the care you get. I don't think insurance companies should ... I definitely don't think politicians on Capitol Hill should ... I think there's one person who gets to make decisions about your health care -- that's you."
The president can obviously say what he wants, but I wish he wouldn't say that a law means its opposite. When it comes to women's reproductive health, the new health law shows no regard for women's ability to make their own decisions.
Polls show that most women don't want abortion in their health coverage (68 percent, according to a poll taken in fall 2009, as the health care debate began). Most insurance companies still include it, but enrollees can always ask that it be taken out, and may get their way if they band together. The new health care law changes this balance of power by giving insurance companies more power to make such unilateral decisions.
In the new health care exchanges, the new national health care law states that insurance companies "shall determine whether or not the plan provides coverage" of elective abortions. There is no role for the women being covered. Once an insurer decides to cover abortions, it is required to "collect from each enrollee in the plan ... a separate payment" for abortion, beyond the regular premium. ¤1303 (b)(2)(B)(i). In short, the federal government now forbids an opt-out from abortion coverage.
There is a proviso that, out of the dozens of health plans on each state exchange, at least one must exclude elective abortion coverage. So if I'm among the majority of women who don't want to buy abortion coverage, I have the freedom to choose between that plan and ... none. Hope it's a good plan.
Things don't get better when we turn to the new "preventive services" mandate for contraceptives. Currently, most insurance companies cover it; most employers go along; female employees can ask for a different decision, especially if they band together. The new law sets up a different regime: Everyone must offer, sponsor or purchase exactly the same coverage. The federal government is the only decider. Even in most religious institutions, female employees cannot choose differently. The federal government has floated the idea that it will assign a "separate entity" to "provide this coverage automatically and directly to participants and beneficiaries" at religious institutions. In other words, coverage will be imposed on women whether they want it or not, "automatically," including drugs, devices and surgeries, and accompanying "education and counseling" for any daughters I have -- with guarantees of "privacy" so I will never know what's happening.
Women who want contraceptives at a lower cost may think that their freedom is growing. What they may not realize is that supporters of the mandate are avowedly trying to change their behavior -- to move women from their current methods of contraception to more expensive "long-acting reversible contraceptives" like the IUD and implant, which work for years and can only be removed by a doctor. About 5 percent of women use them today, but in a recent study, researchers offered all methods for "free" but persuaded about 75 percent of a cohort of women to get LARCs inserted. This study, which proves that medical professionals can badger women into long-term sterility, is being hailed as a paradigm for the contraceptive mandate.
Want to give women control over their own health care, Mr. President? Let's start by ending the abortion and contraception mandates and giving people freedom to choose their own coverage.
Helen Alvare, an associate professor at George Mason University School of Law, is the author of "Breaking Through: Catholic Women Speak for Themselves."