When Supreme Court Justice Anthony Kennedy announced his resignation on Wednesday, the immediate concern was what a new, Trump-appointed justice could mean for abortion rights established under Roe v Wade in 1973 and reaffirmed in several SCOTUS cases since then. Trump has said that his list of potential nominees would all vote to overturn Roe, which would immediately make abortion illegal in multiple states, and that’s a scary prospect that’s been widely covered.
But something that’s not getting as much attention is the fact that a more conservative court could rule against employers having to cover birth control and family planning clinics having to offer it. The potential intersection of reduced access to birth control and restricted abortion rights could set up a perfect storm of more unintended pregnancies and fewer places for women to access safe, legal abortion. Maternal death rates in the US are already too high, and the combination of some women being forced to carry an unintended pregnancy to term and likely delaying prenatal care and some women seeking abortions from unsafe providers could lead to even more women dying—particularly women of color and low-income women.
How could birth control be affected? It’s because of the phenomenon of anti-choice lawmakers and activists also being anti-contraception, despite the fact that access to effective birth control prevents unintended pregnancies and abortions.
Donald Trump first committed to nominating “pro-life” justices to the Supreme Court in a September 2016 letter made public by anti-choice group Susan B. Anthony List, where he announced that he had appointed SBA List president Marjorie Dannenfelser to lead his Pro-Life Coalition. (SBA List had previously urged caucus and primary voters to support “anyone but Trump,” but then he won the Republican nomination in July 2016.) Not only does SBA List oppose abortion in all circumstances, they also oppose the copper IUD and emergency contraception, aka the morning-after pill, because they falsely believe they cause abortions.
Aside from aligning itself with anti-choice, anti-contraception groups like SBA List and the Heritage Foundation, the Trump administration has also placed a large emphasis on defending religious freedom, establishing a new branch of the Office of Civil Rights that would allow doctors to deny people birth control, among other health services. Lawsuits around these issues could get appealed up to a much different-looking Supreme Court.
“We have said to our members ‘this is not a drill,’” Ilyse Hogue, president of NARAL Pro-Choice America, told reporters in a call on Thursday. Hogue pointed out that the lawsuits necessary to overturn Roe and reduce access to contraception are already moving through the courts.
I spoke with Mara Gandal-Powers, senior counsel at the National Women’s Law Center, to get a sense of what could happen. “The balance of the court is going to change and not in a way that favors women’s rights, so we’re certainly concerned about birth control and abortion and a host of other rights that have really shaped the way women live their lives,” she says.
Here are the ways the Supreme Court could attack birth control access:
It could allow employer-based health insurance to stop covering it
Under the Affordable Care Act, employer health insurance plans have to cover all FDA-approved methods of birth control prescribed by a doctor without a copay as a preventive health service. This does not apply to employers that are religious institutions or religious non-profits; they have their own set of exemptions. (Still, the National Women’s Law Center filed a lawsuit on Tuesday against the Trump administration and the University of Notre Dame for a settlement that denied students and employees birth control coverage.)
But in October, the Trump administration issued an “interim final rule” that would have allowed any employer, including large for-profit companies, to immediately stop covering birth control for religious or moral reasons. Civil rights groups and states attorneys general immediately sued because as, California Attorney General Xavier Becerra put it at the time, "Everyone has the right to practice their religion but they don't have the right to practice it on someone else."
In December, federal judges in Pennsylvania and California issued preliminary injunctions that temporarily blocked the rule from going into effect, but the Trump administration appealed the rulings in February. Oral arguments in appeals court are expected to happen in the fall. Gandal-Powers says that if courts rule against the administration over and over again, it could appeal the case to the Supreme Court.
“That is worrisome, particularly given that Justice Gorsuch ruled in the Hobby Lobby cases [as a circuit court judge] in favor of businesses being able to exclude birth control from their benefit plans,” she says. “We already know there’s that vote there against it.”
The Hobby Lobby case centered on IUDs and the morning-after pill, but Gandal-Powers says we need to be concerned about birth control coverage in general. “Right now, the ACA’s birth control benefit is still in effect because of those two cases—the the California and Pennsylvania cases,” she says, but notes that multiple states have started to enshrine the ACA birth control benefit at the state level, which is a good thing.
It could limit funding for family-planning clinics to those that don’t offer all contraception options
The administration has also been attacking the Title X family planning program, which provides grants to clinics that offer low- or no-cost services including birth control, STD testing and treatment, and cancer screenings to 4 million people every year. In February, the administration said in a call for grant applications that it would prioritize programs that focus on “natural family planning” methods and abstinence-only sex education, which is to say, groups that don’t offer the full range of FDA-approved contraception. Then the administration introduced the so-called “domestic gag rule” which would ban providers that offer abortion from even applying for the grants.
There are more than 100 counties in the US where Planned Parenthood is the only safety-net provider of family planning services. Experts have argued again and again that community health centers would be unable to fill the gap, partly because they specialize in primary care, not reproductive healthcare—they’re much less likely to offer the full range of FDA-approved birth control or be able to do same-day insertion of IUDs, one of the most effective contraceptive options available, or on-site dispensing of the pill.
Gandal-Powers says the domestic gag rule “would fundamentally change how the family planning safety net in this country functions in a way that does not prioritize medically accurate information or contraception.” Several groups have sued the administration over the February change (rewriting the Title X program rules in a grant announcement), and lawsuits are expected over the newest change as well.
It could block Planned Parenthood from being a Medicaid provider
There are 67 million people in America who have Medicaid for their health insurance and the Trump administration has sent signals to states that they could exclude healthcare providers that offer abortion from the Medicaid program, even though, by law, people are supposed to have their choice of a qualified provider who accepts Medicaid. (Medicaid dollars already can’t be used to pay for abortions outside the cases of rape, incest, and the mother’s life being at risk.) What does this have to do with birth control? It’s a direct attack on Planned Parenthood and other reproductive health clinics, which are top providers of birth control to low-income women.
Texas tried to exclude abortion providers from Medicaid during the Obama administration but courts blocked it from doing so; instead the state created its own program in 2013 and refused $35 million in federal Medicaid money to do it. A 2016 study published in the New England Journal of Medicine found that, in the year and a half after excluding abortion providers from its state program, birth control use fell and births rose in counties that had Planned Parenthood locations. Texas Governor Greg Abbott asked Trump in January to approve its application for a Medicaid program that excludes Planned Parenthood after the administration rescinded the Obama-era guidance warning states not to exclude abortion providers.
Gandal-Powers says there’s a similar case out of Louisiana that the Supreme Court will decide if it will hear this fall. (The Supreme Court doesn’t hear every case sent its way.) In 2015, Louisiana Governor Bobby Jindal said he would cancel the state’s contract with Planned Parenthood after the release of deceptively edited videos about fetal tissue research. A federal judge blocked the move but the state appealed; then a circuit court of appeals ruled in a tie in November.
“They’re trying to get around the [Medicaid choice of provider] statute,” she says. “It’s really important because Planned Parenthood and other family planning providers know how to provide family planning to people, they’re trusted healthcare providers and, for many women, those are the providers they see for primary care and have seen in the past. It would be really detrimental to women’s health broadly to have those points of care be inaccessible.”
Gandal-Powers says that in order to truly have birth control access, people not only need a place to get it, but it needs to be affordable. All of these lawsuits could compromise access and cost.
“If you think about how you get any healthcare, you need a place to get the care, you need a healthcare provider who can give it to you, and it also has to be affordable and that’s where the insurance piece comes in,” Gandal-Powers says. “If you don’t have both of those working together, the system falls apart for people—particularly for people who face other barriers to care.”
She encouraged people who care about birth control access to contact their Senators about Supreme Court nominees, vote in the midterm elections, and to try to help get birth control laws passed in their home states.
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