The Supreme Court Is Apparently Okay With More Than 100,000 Women Losing Birth Control

In a blow to reproductive rights advocates (and to anyone who relies on birth control), the Supreme Court upheld a Trump administration’s regulation that allows private employers with religious or moral objections to opt out of insurance coverage for contraceptives without having to provide an alternative to employees. In the 7-2 vote, Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented; Justice Clarence Thomas wrote the majority opinion in favor of upholding the regulation.

Insurance companies and employer-provided health care plans have been required by law (under the Affordable Care Act of 2010) to cover all preventive care services and screenings for people with uteruses with no upfront costs for patients. After input from the Health Resources and Services Administration (HRSA), the definition of preventive care was expanded to include contraception in 2012—from birth control pills to intrauterine devices (IUDs) and sterilization. This meant that insured patients needing these services would no longer have to pay a co-pay. According to Planned Parenthood, expanded access to cost-free birth control affects 62 million Americans.

Initially, only houses of worship objecting to birth control coverage for faith-based reasons were exempt from this rule. But conservatives have successfully fought to chip away at the mandate. In the 2014 case Burwell v. Hobby Lobby, the Supreme Court found that requiring all companies to cover birth control for employees violated a 1993 law on religious freedom. This widened the definition of employers who could claim a religious exemption from explicitly faith-based organizations (like churches) to secular employers with leadership who believe covering contraceptives violates their religious beliefs. The Trump administration’s update of the rule in 2017 sought to widen those exceptions further to include objections on “moral” grounds—which is what the Supreme Court upheld Wednesday after a temporary block by a federal court in 2018.

Most U.S. employers are still required to cover birth control, but government estimates predict that 75,000 to 126,000 women will lose access to cost-free birth control from their employers because of the Trump administration’s rule.

Regardless of how someone chooses to use birth control, it’s disheartening that the apparent moral objections of some outweighs the rights of many to make health decisions concerning their own bodies.

Frustrating to many (including this health editor) is the fact that the majority of birth control users rely on the medication for reasons beyond pregnancy prevention, including managing painful cramping, hormonal acne, and endometriosis. Preventing pregnancy has also allowed for people with uteruses to advance in the workforce and reliably plan their families. “Today’s ruling is egregious—people rely on birth control for their health, for their livelihoods, and for their ability to determine their own futures,” said Alexis McGill Johnson, CEO of Planned Parenthood Action Fund, in a statement. “The dual public health crises of COVID-19 and systemic racism and violence are pushing people, our health-care system, and our economy beyond their limits, and yet today, the Supreme Court has allowed the Trump administration to make essential health care even more difficult to access.” Johnson also warned that this decision will disproportionately impact women of color, who are more likely to experience barriers to entry for health care in the first place.

It’s also disturbing that employers apparently have the right to decide what reproductive health options are best for their employees while covering some things and not others. “By allowing employers to cherry pick what constitutes appropriate health care options for women, today’s decision removes women as decisionmakers in their own health care. The choice to use contraception and what method to use is a deeply personal one between a health care provider and patient alone—not an employer,” Gillian Sealy, CEO of reproductive health advocacy group Power to Decide, said in a statement.

Additionally, regardless of how someone chooses to use birth control, it’s disheartening that the apparent moral objections of some outweighs the rights of many to make health decisions concerning their own bodies. But that is the story of America—after all, abortion access continues to be litigated and limited nearly 50 years after the Roe v. Wade decision enshrined abortion as a constitutional right. (The right to an abortion was upheld in a 5-4 ruling just last week by the same Supreme Court.) The ruling is also out-of-step with the majority of Americans who support employers providing contraception. Everyone benefits from safe, reliable contraception, from individuals and couples who are able to safely plan their families to health care providers who save billions of dollars in costs each year from expanded access to birth control. 

“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” wrote Justice Ginsburg in her dissent (co-signed by Justice Sotomayor). “This Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.”

The pandemic (and subsequent skyrocketing unemployment rates) has already made a fairly clear case for why health insurance coverage should not be tied up with one’s employment status. Now that 126,000 women are set to lose their birth control coverage on the whims of their employer, it seems like yet another time for Americans to re-visit the necessity of Medicare for All.