Reproductive Justice Under Assault at the Supreme Court

Reproductive Justice Under Assault at the Supreme Court
“The Supreme Court’s decisions this term are a severe blow to reproductive health care access, especially for low-income women and women of color,” writes Manian. “Yet, those legal decisions are not the end of the story.” (American Life League / Flickr)

On Wednesday, July 8, the U.S. Supreme Court decided that the Trump Administration could gut the Affordable Care Act’s (ACA) requirement that health insurance plans cover women’s essential preventive services, which includes contraceptive care.

In Little Sisters of the Poor v. Pennsylvania, the Court upheld the Trump Administration’s extremely broad exemptions to the ACA’s contraceptive coverage requirement.

Just a week ago, in June Medical Services v. Russo, the Supreme Court struck down a Louisiana law that would have shuttered all but one abortion clinic in the state. Unfortunately, that decision came at a steep cost: Chief Justice Roberts wrote a separate opinion in June Medical weakening the legal standard for protecting abortion access and setting forth a road map for how states can attack abortion rights going forward.

Together, June Medical and Little Sisters of the Poor represent the dawning of an unprecedented attack on reproductive rights and justice. Regulations restricting access to contraception and abortion disproportionately harm poor people and people of color, groups who are already suffering excessive health care burdens during the coronavirus pandemic. 

The Trump Administration’s Attack on Birth Control

Little Sisters of the Poor v. Pennsylvania is the culmination of an almost decade-long courtroom battle to bring to fruition the ACA’s promise of equitable access to essential health care for all Americans. Congress passed the Women’s Health Amendment as part of the ACA to decrease the disparity in health care costs experienced by women.

At its core, the Women’s Health Amendment is an anti-discrimination law. In other words, Congress intended to ensure 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.

Reproductive Justice Under Assault at the Supreme Court
At a rally in support of Affordable Care Act in Washington, D.C., on February 25, 2017. (Ted Eytan / Flickr)

Contrary to conservative claims, the contraceptive coverage requirement is not about forcing nuns to pay for contraception. In fact, Obama-era rules ensured that religious organizations could exempt themselves from birth control coverage, while providing for an alternative mechanism for women to access contraceptives.

The Obama administration offered an accommodation to religious non-profits by creating an opt-out process. Religiously motivated organizations 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.

Yet, organizations like the Little Sisters of the Poor objected to the mere filing of a one-page form as too burdensome.

Businesses and universities also challenged the ACA’s equal coverage mandate by seeking a complete exemption that would block employees and students who wanted birth control coverage from obtaining it as part of their health insurance plans.

The Trump administration granted that wish—even for corporations with no religious affiliation.

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.

Strikingly, the Trump regulations contain no alternative mechanism to ensure women’s access to birth control coverage. Those regulations had been enjoined by a lower federal court, but the Supreme Court decision allows the Trump rule to go into effect—leaving tens of thousands of women without insurance coverage for contraception.

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All Five Republican-Appointed Supreme Court Justices Approved Trump’s Evisceration of Contraceptive Equity

The conservative wing of the Supreme Court—notably all men—held that the Trump administration possesses the statutory authority to carve out contraception from the ACA’s equitable health care coverage mandate.

The majority opinion did not directly address claims that religious “freedom” includes the right to impose harms on third parties who do not share their bosses’ beliefs about contraception. Instead, the majority focused on technical issues of statutory interpretation and administrative procedure to conclude the Trump administration could issue extremely broad exemptions to coverage of contraception despite the damage to women’s equal access to preventive care.

In yet another example of the Supreme Court favoring conservative religious claims over women’s right to equality under the law, Justice Alito wrote a separate opinion directly addressing assertions that religious freedom not only permits, but in fact requires, eviscerating the contraceptive coverage mandate.

In an opinion joined by Justice Gorsuch, Justice Alito claimed that the Religious Freedom Restoration Act (RFRA) mandates exemptions like those issued by the Trump administration. Justice Alito relied heavily on a prior decision, Burwell v. Hobby Lobby Stores—in which, once again, five Republican-appointed male justices held that corporations are entitled to accommodations against the contraceptive coverage requirement.

Reproductive Justice Under Assault at the Supreme Court
Outside the U.S. Supreme Court while awaiting the Court’s decision in Burwell v. Hobby Lobby, June 2014. (American Life League / Flickr)

Notably, Justice Alito’s Little Sisters of the Poor opinion exclaims:

“The Court has held that there is a constitutional right to purchase and use contraceptives … but the Court has never held that there is a constitutional right to free contraceptives.”

Justice Alito’s statement ignores the constitutional right to equality—and that the crux of the Women’s Health Amendment ensures that all women have equal access to essential health care.

Justice Kagan Offers an Alternative Path to Challenge Trump’s Anti-Contraception Rules  

Although news reports indicate that the decision was 7-2, those numbers are somewhat misleading.

Justice Kagan wrote an opinion (joined by Justice Breyer) concurring in the judgment—meaning the two liberal justices agreed only with the result but not with the reasoning of the five conservative justices.

Reproductive Justice Under Assault at the Supreme Court
Justice Elena Kagan at Fortune’s Most Powerful Women summit in October 2013. (Fortune Live Media / Flickr)

As explained in her opinion, Justice Kagan felt compelled by the statutory text to agree the Trump administration could decide to issue exemptions to coverage of contraception.

However, Justice Kagan’s opinion offered an alternative legal route to challenge the Trump administration’s attack on birth control coverage: She noted that the lower federal court had not reached a decision on an additional legal question about the extremely broad exemptions granted by the Trump administration—namely, that the exemptions are “arbitrary and capricious.”

The arbitrary and capricious standard is a legal term of art requiring that administrative decisions reflect reasoned decision-making and draw a rational connection between the problem identified and the chosen solution.

Justice Kagan then set forth a clearly reasoned argument for why the Trump administration’s broad contraceptive carve-out could contravene the arbitrary and capricious legal standard. Thus, challengers could attempt to block implementation of Trump’s attack on birth control in the lower federal court based on Justice Kagan’s opinion.

Justice Ginsburg wrote a dissenting opinion articulating the devastating harms imposed by the Trump administration’s excessively broad contraceptive coverage exemptions. The government’s own estimates showed that, at a minimum, between 70,500 to 126,400 women would lose birth control coverage under the Trump exemptions.

Reproductive Justice Under Assault at the Supreme Court
Justice Ruth Bader Ginsburg at the National Book Festival in D.C. in August 2019. (Hillel Steinberg / Flickr)

Ginsburg emphasized ready access to contraception both “safeguards women’s health and enables women to chart their own life’s course.”

Furthermore, Ginsburg noted that the ACA has especially helped women in lower-income groups access health care more broadly and preventive services such as contraception in particular. The Trump administration’s exemptions impose significant burdens on those women, since they will now either struggle to find coverage for contraception elsewhere or be forced to pay out of pocket.

The Supreme Court’s Decisions on Contraception and Abortion Will Disproportionately Harm People of Color

The ACA’s mandate for equity in health care through contraceptive coverage rests on medical experts’ conclusion that birth control is essential preventative care.

Evidence (and common sense) tells us that supporting and expanding women’s access to contraception reduces the rate of unintended pregnancy, which reduces the rate of abortion. Yet, not only did the five Republican-appointed Supreme Court justices undermine access to contraception—they also gave the green light for greater restrictions on abortion care.

Shortly after deciding June Medical, the Supreme Court ordered a lower federal court to reconsider two abortion rights victories in light of the weakened legal standard announced by Chief Justice Roberts. The lower court had voted to strike down an Indiana forced ultrasound law and a law forcing teenagers to notify parents of their decision to seek abortion care. Those victories for abortion rights now appear to be in jeopardy.

Restricting women’s access to both contraception and abortion exposes the true conservative agenda—to harken back to a time when women did not have control over their own bodies.

Reproductive Justice Under Assault at the Supreme Court
Planned Parenthood volunteers in Columbus, Ohio, in August 2009. (ProgressOhio / Flickr)

The Supreme Court’s dismantling of reproductive rights will not impact all women equally. 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.

Black women especially endure higher rates of unintended pregnancy and higher rates of maternal mortality. Lack of access to the most effective forms of contraception renders the constitutional right to contraception meaningless for marginalized women.

After June Medical, the Court could permit so many anti-abortion obstacles that only the wealthy will be able to readily access the full spectrum of reproductive health care—replicating conditions that existed prior to Roe.

As advocates of reproductive justice have emphasized, Roe v. Wade exists in theory but not in reality for many poor and marginalized pregnant people.

The Future of Access to Contraception and Abortion

The Supreme Court’s decisions this term are a severe blow to reproductive health care access, especially for low-income women and women of color. Yet, those legal decisions are not the end of the story.

Congress has the power to reverse the Trump administration’s rules on reproductive health care and the broad exemptions to birth control coverage.

In addition, they must reaffirm the ACA’s commitment to equitable access to health care, reverse the Trump administration’s rules protecting religious and moral objections to health care at the expense of patients, and work to pass the EACH Woman Act, which would repeal the Hyde Amendment and ensure low-income women can access abortion care.

Reproductive rights and justice activists can also pressure state legislatures to enact contraceptive equity laws in every state and cover abortion care in their Medicaid plans.

Elections matter more than ever and the next election promises to reshape the trajectory of reproductive justice in the United States.

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Maya Manian, J.D., is a professor of law and faculty director of the Health Law and Policy Program at American University Washington College of Law. Manian's research investigates the relationship between constitutional law, family law and healthcare law, with a particular focus on access to reproductive healthcare. She previously served as a Blackmun fellowship attorney at the Center for Reproductive Rights. Manian received her undergraduate degree from the University of Michigan and her law degree magna cum laude from Harvard Law School.