Updated on July 8, 2020:
On July 8, the U.S. Supreme Court issued a 7-2 decision in Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania upholding the Trump administration’s legal authority to issue sweeping religious and moral exemptions to the Affordable Care Act’s contraceptive coverage guarantee. Those exemptions, finalized in administrative regulations in 2018, have the potential to eliminate birth control coverage for hundreds of thousands of people whose health insurance is arranged by their employer or school, thereby undermining their health and rights.
This is not the final word on the subject: The Supreme Court sent the case back to lower federal courts, and Pennsylvania’s attorney general, who led the challenge to the Trump rules, has stated he will continue pursuing the case on other legal grounds. Moreover, the Court’s decision leaves open the possibility that a future administration will issue new regulations to narrow the exemptions again, or that Congress will amend the law to better protect contraceptive coverage.
Even if the Trump administration’s rules take effect, the contraceptive coverage guarantee would still apply to the health plans of tens of millions of people in the United States. Yet, the range of employers and schools allowed to claim exemptions—and deny contraceptive coverage to employees and students—may have expanded greatly.
First published June 26, 2020:
The U.S. Supreme Court is poised to make a ruling for the third time since 2014 on the issue of private health insurance coverage for birth control, and that is no accident. This issue is before the Court again in the cases of Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania because the Trump administration and its socially conservative allies are engaged in a coordinated campaign to eliminate affordable access to contraception and to tar contraception as immoral.
We must not view these attacks in isolation, and we must not accept the pretexts offered to obscure the pattern and the underlying, coercive motivations. Each attack blocks off birth control coverage from a different angle, and as additional barriers are erected, they begin to form an outright enclosure.
The Pattern Matters
In less than four years, the Trump administration has undermined birth control coverage and access in numerous ways, including these four prominent attacks:
- Trump administration rules—first issued in October 2017, finalized in November 2018 and currently blocked by the courts—would vastly expand exemptions from the Affordable Care Act’s (ACA’s) contraceptive coverage guarantee for employers and schools with religious or moral objections. If the Supreme Court allows these rules to take effect, hundreds of thousands of people, and perhaps more, might lose their right under the ACA to have insurance plans that meet their preventive health care needs by covering a full range of contraceptive methods and services without copayments or other out-of-pocket costs for patients. This in turn would compromise people’s ability to obtain contraceptive care and heighten their risk of unintended pregnancy and the negative health, social and economic consequences that can result.
- In March 2019, the Trump administration finalized a destructive overhaul of the federal regulations that govern the Title X national family planning program. Among other harms, the rule prohibited referrals for abortion, undermined counseling standards for pregnant patients, and set unnecessary and overbearing requirements for the physical and financial separation of Title X–funded activities from a range of abortion-related activities. This "domestic gag rule" has cut the Title X network’s patient capacity in half and jeopardized care for 1.6 million female patients nationwide.
- In May 2019, the administration issued its final version of a "refusal of care" rule that broadly interprets long-standing federal laws in ways that may undermine sexual and reproductive health policy and patients’ rights and care. The rule expands the power of individual and institutional health care providers to deny services, information and referrals—including contraceptive care and other sexual and reproductive health care—to which they claim religious or moral objections. This new tool enhances the power of religiously affiliated health care institutions to impose their values and agenda on our pluralistic society at the expense of patients’ health and rights.
- In January 2020, the Trump administration colluded with Texas state officials to undermine Medicaid coverage of family planning care by denying patients access to Planned Parenthood affiliates and other health centers with a connection to abortion. In Texas, the primary impact of this action was to grant federal money and blessing to a state-run program that had long been proven to be broken. Moreover, it set a new precedent that other conservative state policymakers will seek to emulate in their seemingly never-ending attempts to "defund" Planned Parenthood.
Beyond these direct attacks, conservatives have waged broader assaults on health care that indirectly impact contraceptive coverage and care. The Trump administration’s discriminatory "public charge" rule and other anti-immigration policies have denied health insurance and care to numerous immigrants and their family members, in large part by sowing fear and confusion. Conservative federal and state policymakers have relentlessly attempted to reshape Medicaid—such as through onerous work requirements and caps on federal funding—in ways that could deny insurance coverage to millions. And conservative states and the Trump administration continue to seek the full-scale repeal of the ACA in a case the Supreme Court will hear in autumn 2020.
Conservative policymakers and activists have often succeeded in deflecting the media and the public from seeing the overall pattern of their attacks. In the birth control cases before the Supreme Court, they falsely suggest that private insurance coverage of contraception could be replaced by Title X, Medicaid and other federal and state programs—even as they work separately and simultaneously to undermine these same programs. Similarly, conservatives obscure the motivations that underlie their attacks, by couching them in terms of "religious freedom" and by falsely conflating contraception with abortion.
In reality, the Trump administration and its conservative allies oppose contraception, in addition to abortion. Because their worldview about sexuality and reproductive decision making is out of step with the beliefs and actions of most Americans, social conservatives have long embraced coercion as the primary tool to impose their agenda on others—using any and all policy levers at their disposal to do so. We must recognize their actions for what they are and prevent them from succeeding.