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.

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.