The biggest challenge of the birth control mandate, and most often overlooked, was the incentivization of female sterilization over male sterilization as birth control by Obamacare's mandate to pay for female sterilization with no similar free coverage for male sterilization. Under Obamacare this is the case and is a major reason why whether using religious or other grounds rolling back the mandate is a good thing. But there are many reasons and possible solutions to maintaining female access to birth control covered below.
Single Risk Pool Myth Continued: The birth control mandate was not well done because it used the mythology of the "single risk pool," where everyone shares in everyone's costs to force people to purchase services they themselves might never use AND it incorporated gender bias against males, forcing them to purchase the coverage but being excluded from it. (Therefore not a single risk pool with comparable reproductive health care paid for by all for all).
Using Money to Steer the availability Health Care by limiting access: Deciding what to pay for and what not to pay for has always been an insurance company strategy for steering health care services access with money, while avoiding practicing medicine without a license, "Do what you want, we just won't pay for it."
Truly, Obamacare requires an understanding of the health insurance excuse, which has been in place for decades when people were excluded from coverage or found services unpaid for. No, insurers weren't prohibiting or advising medical care they were just not paying or paying for it. This issue, one that was used for everything from genetic testing mandates to refusing to cover treatments as "experimental," was and is a key to insurers steering healthcare in America.
Unfortunately, through its partnership with insurance companies, Obamacare put this excuse on steroids, justifying cost-savings brutalities like not covering the most modern delivery systems for insulin or insulin testing to limiting who can obtain an EpiPen. They're not saying you can't purchase it, just that insurance won't cover it.
Acknowledging this truth, when it comes to the birth control mandate, Obamacare focused on the inverse, by paying for some health care coverage it encourages that health care. When it comes to sterilization, it's obvious therefore, that by paying for female only sterilization, Obamacare steers decisions in favor of sterilizing females (paid for in full) over males (sterilization not covered).
Governments have used free sterilization before, and focusing on the "freeness" of the sterilization hardly addresses the import of a government policy, Obamacare, that ENCOURAGES female sterilization for free and DISCOURAGES the less complicated and cheaper male sterilization procedures by not paying for them.
Therefore, the birth control mandate, a law embodying gender discrimination with the forced payment of benefits ONLY for women, excluding male birth control options including sterilization should NEVER have passed muster and certainly should have raised the FAIRNESS eyebrows of those who today are ranting that rolling back the female-only provisions is "bad" for women.
Religion was Easier: But of course, religion was the clearer path upon which to attack the law, successfully so far.
During Obama's presidency, religious organizations have been continually objecting to being forced to purchase birth control coverage plans for their populations as per Obamacare. Obamacare exempted religious organizations. Then there was the Obama era Supreme Court Hobby Lobby decision that created the exemption from being forced to provide contraception coverage by closely held corporations on religious grounds as violations of the Religious Freedom Restoration Act, in other words, a violation of Hobby Lobby's religious freedom.
Also begun during Obama's reign, still unresolved was the lawsuit by the Little Sisters of the Poor, who emphasized that they didn't want to be forced to support contraception in violation of their religious beliefs EVEN IF they didn't ultimately have to pay for such coverage. This is reported in many places including in the NY TIMES, by Constance Veit on 3/18/2016, in the article "Obamacare’s Birth-Control ‘Exemption’ Still Tramples on Rights."
An Easy Fix: But there is an easy fix, given HHS' rulemaking authority under Obamacare, expand eligibility for an Obamacare exchange plan if birth control is excluded by including eligibility for premium tax credits and cost sharing.
Currently, if your employer offers a qualified health plan, you CAN opt out of employer coverage and choose a marketplace plan BUT without access to premium tax credits and cost sharing, the entitlement dollars Obamacare pays. HHS could easily create an OPTION that individuals whose plans don't offer the birth control freebie could opt out of their employer plan, (which they can currently do), opt into an exchange plan, (which they currently do) and be eligible for premium tax credits and cost sharing (which they currently CANNOT do). This solution would also expand enrollment in exchange plans which have underperformed from day one.
