The ACA’s Birth Control Benefit Is Back Before the Supreme Court

Adam Sonfield, Guttmacher Institute

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.

Updated on April 9, 2020: 

On April 8, 2020, the Guttmacher Institute filed an amicus brief with the U.S. Supreme Court in support of the lawsuits challenging the Trump administration’s rules. The brief presents the evidence demonstrating the positive impact of the Affordable Care Act’s contraceptive coverage guarantee and the harm that would result if the Trump administration’s rules were to take effect. Oral arguments in the case were originally scheduled for April 29, but have been postponed because of the COVID-19 crisis.

First published January 23, 2020:

The federal contraceptive coverage guarantee is back before the U.S. Supreme Court, with affordable access to birth control yet again threatened by policymakers and employers opposed to reproductive health and rights.

This time, the case revolves around the Trump administration’s 2018 regulations creating sweeping new exemptions from the guarantee for employers, schools, individuals and insurers with religious or moral objections to some or all contraceptive methods and services. Those regulations were challenged by numerous states and have been temporarily blocked nationwide in the case of Trump v. Pennsylvania, with the injunction affirmed by the Third Circuit Court of Appeals. That decision left the Obama-era rules around the birth control benefit in place.

Now, the Trump administration and the Little Sisters of the Poor (one of the plaintiffs in an earlier court case) are asking the Supreme Court to lift that injunction and allow the Trump rules to go into effect. Those rules are part of a larger agenda by social conservatives to undermine sexual and reproductive health and rights and impose their values on everyone else.

Potential for Widespread Harm

To be clear, even if the Trump administration’s rules are allowed to go into effect, the contraceptive coverage guarantee would still be the law of the land. Under a provision of the Affordable Care Act, most private health plans in the United States must cover a full range of contraceptive services and supplies, along with dozens of other preventive care services, without any out-of-pocket costs for the patient. This applies to plans sold to employers, schools or individuals, or offered by employers that self-insure, taking on the financial risks themselves.

Yet, the Trump rules would vastly expand the universe of entities that could claim an exemption from this requirement based on religious or moral objections. How many employees, students and dependents would be affected depends on how many employers, schools and insurance companies ultimately decide to claim such an exemption, and that number is difficult to predict.

A 2015 study estimated that 3% of all nonprofits and 10% of the largest nonprofits were using the Obama administration’s compromise "accommodation," which allowed an objecting employer to refuse to pay or arrange for birth control coverage while still ensuring that employees and their dependents receive that coverage directly from the employer’s health insurance company. Many of those nonprofits might instead claim an exemption, if allowed to do so, and actively deny contraceptive coverage to all of these enrollees.

Contraceptive Coverage Matters

The Guttmacher Institute was among numerous organizations that supported the lawsuits challenging the Trump administration’s rules and filed a declaration in Trump v. Pennsylvania. As described in that declaration, birth control coverage has real benefits for millions of people in the United States that are threatened by the Trump rules.

  • Contraceptive access matters: Almost all women use birth control at some point in their lives, with 86% having used three or more methods by their early 40s. Being able to select the methods that best fulfill their contraceptive needs and priorities helps ensure that people will be satisfied with their chosen methods and use them most effectively to prevent unwanted pregnancies and time and space those they do want.
  • Cost is a barrier: Many contraceptive choices entail considerable up-front and long-term costs for the drug or device itself and the necessary visit to a provider for services. These costs can place effective birth control out of reach for many people who want it, driving them to use less expensive and less effective methods. Eliminating these costs can help people choose the best methods for themselves and use them consistently, according to studies of insurance requirements, public programs and patients’ own attitudes.
  • The coverage guarantee has had a positive impact: Numerous studies confirm that the federal contraceptive coverage guarantee has dramatically reduced out-of-pocket health care spending. Most women surveyed who had such coverage agreed that it has helped them use the birth control method of their choice and to use it effectively. Several population-level studies also suggest that the guarantee has had a positive impact on use of prescription methods and consistent contraceptive use among those benefiting from the provision.
  • Expanding exemptions would be harmful: The Trump administration’s expanded exemptions would undermine this progress by interfering with people’s contraceptive choices, their ability to use contraception effectively and their continuity of medical care. This could have negative health, social and economic impacts for individuals and families, particularly for people with the least amount of resources and privilege.
  • Other policies cannot substitute for contraceptive coverage: The Trump administration and other opponents of the birth control benefit falsely suggest that it could be replaced by other federal or state programs and policies. Yet, programs like Medicaid and the Title X national family planning program have limited resources and eligibility. Moreover, the administration and its allies are simultaneously working to undermine these same programs, through attacks like the Title X gag rule, attempts to convert Medicaid into a block grant, and lawsuits to overturn the Affordable Care Act entirely.

The Supreme Court must take all of this evidence into account when it considers the issue this spring. The Trump administration has been continually pressing its thumb on the scale in favor of socially conservative ideology, at the expense of the needs, rights, dignity and values of everyone else in the United States. The Court must recognize that the fundamental value of religious liberty cannot be abused to give employers, schools and insurance companies the right to interfere with personal health care decisions.

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