Will the Supreme Court Treat Birth Control as Essential Health Care?

On Wednesday, the U.S. Supreme Court heard oral arguments in Trump v. Pennsylvania—one of the first in a slew of cases now being argued telephonically due to the COVID pandemic. The case involves the almost decade-long battle to bring to fruition the Affordable Care Act’s (ACA) promise of equitable access to essential health care for all Americans.

The Affordable Care Act’s Equal Coverage Mandate

Congress passed the Women’s Health Amendment as part of the ACA to decrease the disparity in health care costs experienced by women and to ensure that women have the same health insurance coverage for their essential health care needs as men. As part of this mandate for equality, all FDA-approved prescription contraceptives must be covered without a copay in ACA health insurance plans.


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From its inception, businesses and universities have challenged the ACA’s equal coverage mandate by seeking exemptions that would block employees and students who wanted birth control coverage from obtaining it through their health insurance plans. The Obama administration sought to defend comprehensive health care coverage—including birth control. 

The Trump administration not only abandoned this defense of the ACA, but went further to attack access to birth control by granting extremely broad exemptions to the ACA’s contraceptive coverage requirement. In 2017, the Department of Health and Human Services issued new regulations allowing almost any employer—including large corporations and colleges—to refuse to include birth control in their health insurance plans based on religious or “moral” objections without any notice to the government.

Pennsylvania filed a lawsuit challenging the new Trump exemptions, ultimately bringing the battle over birth control back to the Supreme Court yet again.

Birth Control Battle Déjà Vu: The Saga of Contraceptive Equity at the Supreme Court

The current battle over birth control access is the Supreme Court’s third round of ACA contraceptive coverage litigation, dating all the way back to 2014. In past litigation, all five Republican-appointed Supreme Court justices favored claims of religious liberty over reproductive liberty.

First, in Burwell v. Hobby Lobby Stores (2014), the Court held that for-profit corporations like Hobby Lobby that objected to women’s use of contraception could seek accommodations (similar to religious non-profits) to opt-out of including birth control in their health insurance plans. 

In Hobby Lobby, four of the conservative justices refused to even acknowledge that comprehensive coverage of contraception serves compelling government interests in ensuring gender equality and protecting public health. (Justice Kennedy, who provided the fifth vote in Hobby Lobby’s favor, did acknowledge the many benefits of birth control coverage, but he has now been replaced by Justice Kavanaugh.)

Second, in Wheaton College v. Burwell (2014), the Supreme Court ruled in favor of a small religious college objecting to having to notify the government that it would not cover birth control for its employees and students.

As part of the ACA’s contraceptive coverage requirement, the government offered an accommodation to religious non-profits by creating an opt-out process. Religiously motivated organizations like Wheaton College could simply file a one-page form notifying the government that it was taking advantage of the accommodation so as not to cover contraception, and the government would then ensure birth control coverage through other means.

Wheaton College objected to this Obama-era compromise. The Supreme Court never resolved whether religious non-profits had a legal basis for their objection. But the college wanted a complete exemption to the requirement of equitable health care coverage for women—and the Trump administration ultimately granted that wish.

Religious Objection to Contraception as Essential Health Care 

The Supreme Court will now decide if the Trump administration can create a gaping hole in the ACA’s mandate for contraceptive and health care equity for women.

While there are a number of complex legal issues at stake, at bottom, the case hinges on conservative groups’ assertion that religious and even mere “moral” objections to contraception should trump reproductive liberty and gender equality, regardless of the harms caused to women.

During oral argument, Justices Ginsburg and Sotomayor particularly honed in on this point. Ginsburg—who joined telephonically while under treatment at Johns Hopkins Hospital—emphasized that the Trump administration “just tossed entirely to the wind what Congress thought was essential: That is that women be provided these services with no hassle, no cost to them.” She noted that the Trump exemptions would impose the employer’s beliefs “onto employees who do not share those religious beliefs.”

Furthermore, Ginsburg stressed that federal law does not “authorize harm to other people” based on one’s own religious beliefs.   

Sotomayor posed a timely hypothetical to Paul Clement, one of the lawyers defending the Trump administration’s rule. Sotomayor asked whether an employer who held religious objections to vaccinations could object to covering vaccines for COVID-19 in its health insurance plan, if the government mandated vaccine coverage. She noted that some religious observers do oppose vaccines and that, pursuant to the Trump administration’s argument in the present case, companies would have the right to object to COVID-19 vaccines regardless of the harms that coverage exemption would impose on employees.

Clement tried to deflect Sotomayor’s question, but ultimately seemed to suggest that requiring health care coverage for vaccines is more compelling than requiring coverage for contraception—hinting at what conservatives have long argued: that birth control is not essential health care. 

Contraception and Abortion as Essential Health Care

The ACA’s mandate for equity in health care through contraceptive coverage rests on medical experts’ conclusion that birth control is essential preventative care. However, the most effective methods of contraception are also the most expensive—and limiting health insurance coverage of these contraceptives disproportionately burdens poor women and women of color. Lack of access to the most effective forms of contraception renders the constitutional right to contraception meaningless for many women. 

While reading the tea leaves of Supreme Court oral arguments is always a risky business, the Court has now shifted in an even more conservative direction since the Hobby Lobby decision. If the five conservative Justices uphold Trump’s attack on access to contraception, it will fall in line with conservatives’ desire to declare that reproductive health care is not essential health care.

During the ongoing coronavirus pandemic, many Republican politicians have been asserting that abortion care is not essential health care, exploiting the pandemic as an excuse to ban abortion in a number of states. Given that the Supreme Court is also deciding a major case on abortion access at this moment, the Court is poised to issue a severe blow to reproductive health care access, especially for low-income women. 


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About

Maya Manian, J.D., is a Visiting Professor at Howard University School of Law. Professor Manian's research investigates the relationship between constitutional law, family law, and health care law, with a particular focus on access to reproductive health care. She previously served as a Blackmun Fellowship Attorney at the Center for Reproductive Rights. Professor Manian received her undergraduate degree from the University of Michigan and her law degree magna cum laude from Harvard Law School.