Updated on October 28, 2020:
On October 26, the U.S. Senate voted to confirm Amy Coney Barrett to the Supreme Court. Justice Barrett’s confirmation cements a conservative majority on the Supreme Court that threatens reproductive rights, LGBTQ+ rights and health care rights broadly. It also puts countless societal advances and numerous marginalized and oppressed communities in imminent danger, as outlined in part by the analysis below.
First published September 23, 2020:
Justice Ruth Bader Ginsburg dedicated her career to upholding equality and ending discrimination. She fought tirelessly for reproductive rights and gender equity, knowing that bodily autonomy and reproductive freedom are the foundation for everyone’s full participation in society. Her replacement could cement a conservative U.S. Supreme Court majority for decades, setting back many of the gains she so fervently defended.
Even with Justice Ginsburg on the bench, basic human rights have been under sustained attack for decades, and for many groups of people, equal protection under the law is at best theoretical. Six conservative justices opposing reproductive rights, LGBTQ+ rights, social justice and health care as a human right would put countless societal advances and numerous marginalized and oppressed communities in imminent danger.
Such a severe imbalance on the Court would further embolden like-minded state policymakers to push forward regressive and harmful policies, with the hope that even blatantly coercive laws would be allowed to stand. This was the case after the confirmation of Justice Brett Kavanaugh in 2018: A mere four months later, antiabortion state policymakers and activists launched an unprecedented campaign to ban abortion at the earliest stages in pregnancy.
Under a Supreme Court stacked with six conservative justices, regressive federal policymakers would enjoy fewer checks on their power as well. As we look at the cases that could come before the Supreme Court in the coming years, it is clear the next justice will play a crucial role in determining who is afforded basic rights—including sexual and reproductive rights—in the United States.
Abortion is a critical element of reproductive freedom because forcing someone to remain pregnant or give birth is a violation of personal autonomy and basic human rights. Yet, since the constitutional right to abortion was affirmed by the Supreme Court in 1973, state and federal lawmakers have imposed endless barriers to abortion care, with the goal of denying access entirely. The Court has continued to affirm the constitutional right to abortion, while overturning some restrictions and upholding others. Today, the grave reality is that abortion access depends on a host of factors, including where someone lives, the resources they have and whether they have health insurance that includes abortion care.
Justice Kavanaugh’s confirmation in 2018 led antiabortion state policymakers to abandon all pretense with a new wave of abortion bans intended to cut off access and tee up cases for the Supreme Court to consider. Although Chief Justice John Roberts sided with the majority in a decision that struck down a Louisiana abortion restriction in June 2020, he made his willingness to consider other restrictions clear. Adding another antiabortion justice would solidify their majority on the Court, likely for decades, with grave consequences. Some risks are obvious, like the possibility that the Court would overturn Roe v. Wade entirely, or even reinterpret the U.S. Constitution in order to ban abortion outright. Beyond that, lawmakers hostile to abortion could be further emboldened, and advocates and litigators supportive of abortion rights could be spread too thin to fight every new restriction.
Further abortion restrictions would most clearly target and harm people already struggling to get by and who are marginalized and oppressed by structural inequities, such as people with low incomes, people of color, young people and LGBTQ+ people. As in the decades both before and after Roe, people with historic power and privilege will continue to find ways to get the care they need, while people denied those resources are forced to grapple with increasing levels of government-sanctioned reproductive coercion and control.
Birth control is a core component of reproductive autonomy, empowering people to decide if and when to have children, which has numerous implications for their health and well-being. Many people need contraception; 43 million women in the United States are sexually active and do not want to become pregnant. The Supreme Court has repeatedly upheld the right to contraception over the past five decades, starting with its use by married women in 1965.
The threat to birth control is different from the threat to abortion, as it is unlikely that states or the federal government would attempt to outlaw birth control outright. Instead, what is at risk is accessible and affordable birth control, which plays out in whether people’s insurance covers contraceptives or whether they have a trusted provider where they can access services.
Just this year, the Supreme Court weakened the Affordable Care Act’s (ACA) contraceptive coverage guarantee, making it easier for employers and schools to deny insurance coverage for contraceptives. And there are a number of cases moving through the courts that could decide the legality of the Title X national family planning program’s "domestic gag rule," which has slashed the program’s patient capacity by half. If courts continue to affirm that insurance coverage can exclude birth control and to maintain the Title X gag rule, access to birth control faces serious threat. This is particularly true for patients who rely on publicly funded care, who are disproportionately young, lower income, women of color and born outside the United States.
Choice of Providers
All people deserve to have ready access to a strong network of qualified, trusted providers for sexual and reproductive health information and care. Millions of people turn to Planned Parenthood and other providers who specialize in reproductive health care, because they know they can receive care that is comprehensive, high quality, respectful, confidential and affordable. The research agrees: For example, Planned Parenthood health centers are better able to deliver high-quality, timely contraceptive care to more people than other types of providers.
A more conservative Supreme Court could escalate long-standing attempts by conservative policymakers to strip public funding from Planned Parenthood and other providers that offer or refer for abortion. The Trump administration has made progress toward that goal with the Title X gag rule, and 18 states have their own abortion-related restrictions on the allocation of public funds. The next big step in that agenda would be to prevent Medicaid enrollees from using their coverage at Planned Parenthood. Conservatives have pursued that goal aggressively, and Texas state policymakers and the Trump administration colluded to do this for some Medicaid enrollees in that state. Federal courts have blocked most attempts to deny Medicaid reimbursement to Planned Parenthood and other providers with ties to abortion, and that firewall could now be in danger.
The Affordable Care Act and Medicaid
Everyone needs comprehensive health insurance that covers all of their sexual and reproductive health needs, so that cost is never a barrier to care or autonomy. The ACA has had a dramatic impact in moving the United States toward this ideal by greatly expanding Medicaid and private insurance coverage, requiring coverage of contraceptives, maternity care and many other reproductive health services, and protecting patients against unfair insurance practices.
A more conservative Supreme Court would spur conservative policymakers to increase their already persistent attacks on the ACA, starting with a case the Court will hear in November that yet again threatens to overturn the landmark law entirely. The Court might also give its approval to conservatives’ attempts to reshape the Medicaid program through unprecedented caps on federal funding, rules that take away coverage from people who are unemployed, and other restrictions that would deny people sexual and reproductive health care by forcing them out of the program. Successful attempts to overturn or undermine the ACA and Medicaid would affect tens of millions of U.S. residents with public or private health coverage.
LGBTQ+ health and rights are inextricably linked with sexual and reproductive health and rights, because they both involve individuals’ autonomy in their most intimate decisions and for the simple fact that LGBTQ+ people need sexual and reproductive health care.
Although the LGBTQ+ rights movement has won some important victories over several decades, the fight for basic protections is playing out in the courts even now. Just this year, the Supreme Court ruled that the 1964 Civil Rights Act protects LGBTQ+ people from employment discrimination, a decision that is likely to cause positive reverberations in other realms as well, including health care.
Several issues related to LGBTQ+ rights and health care are winding their way through the courts currently. Twenty-three states are challenging the Trump administration’s weakening of a key antidiscrimination policy in the ACA that was intended to protect patients from discrimination based on gender identity and sex stereotyping. Another important policy that will likely come before the Supreme Court is the Trump administration’s "refusal of care" rule, which broadly interprets long-standing federal laws in ways that may undermine both LGBTQ+ patients’ rights and sexual and reproductive health policy. The rule expands the power of health care institutions and clinicians to deny services, information and referrals to which they claim religious or moral objections, regardless of the impact on patients’ health and rights.
People of all immigration statuses deserve access to high-quality, comprehensive sexual and reproductive health care in service of their reproductive autonomy. Immigration is a matter of federal policy, and the current administration has relentlessly attacked immigrants’ rights, humanity and dignity in general and their right to sexual and reproductive health care in particular.
The judicial branch will have the final say on the validity of these rules—from a vast expansion of the "public charge" rule that chills immigrant families from accessing crucial programs such as Medicaid, to the cruel policy of family separation, to the attempted gutting of the Deferred Action for Childhood Arrivals program that allows young people brought to the country as minors to live and work freely. These rules and policies are all moving their way through the court system, often in a multitude of cases, and the increasingly conservative Supreme Court will stand as the ultimate arbiter on whether immigrants are due the same rights and dignity as those born in the country. While immigrants of all statuses stand to be affected by court decisions upholding or invalidating these rules, those in immigration detention are particularly vulnerable, as evidenced by reports of forced and coerced sterilizations at an Immigration and Customs Enforcement detention facility.
A Potential Conservative Supermajority
Justice Ginsburg served this nation as a stalwart champion of human rights for 27 years on the Supreme Court and for decades before that as a judge, advocate and litigator. If her successor further solidifies the current majority of conservative justices, that voting bloc would have increased power to rapidly undo much of the progress that has been made toward building a more just and equitable country, and further exploit and oppress the people whom our laws have failed or blatantly targeted.
As we consider the cases likely to advance to the Supreme Court in the coming years, it is undeniable just how much is on the line for sexual and reproductive health and rights.