There has been a nine-year battle over whether employers who provide insurance must include prescription contraceptives at no cost to the patients. In a general sense, the battle is between those claiming that any involvement in the provision of contraceptives violates their religious beliefs and women who do not share those beliefs but pay the price for them. At a more technical level, the battle is over the Affordable Care Act’s contraceptive mandate, and the Trump administration’s efforts to expand the ability of employers to avoid it. In a recent case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Supreme Court sided with employers, leaving an unjustifiably broad exemption in place that will harm thousands upon thousands of women.
The Contraceptive Mandate and Its Effects
This Obama-era mandate, promulgated in August 2011, was an outgrowth of the Affordable Care Act (ACA). The mandate requires that employer-based health plans cover prescription contraceptives (all types of which are used only by women) at no cost to the patient. The relevant agency included birth control in a list of preventive care and services deemed essential for women’s health. The conclusion that birth control is an essential aspect of health care coverage was based on a comprehensive study of health care needs and access in the United States, conducted by the non-partisan, congressionally chartered group, the Institute of Medicine (IOM). IOM (now the National Academy of Medicine) determined not only that contraception is an essential health benefit but also that the primary barrier to access to effective birth control is cost. The relevant agency thus promulgated Women’s Preventive Services Guidelines that required “coverage, without cost sharing” for FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling. While the contraceptive mandate was based on this study, it is also consistent with the recommendations of numerous health professional organizations. From a medical standpoint, the consensus is clear.
The contraceptive mandate had a significant impact. Because our system is based primarily on employer-based health insurance, the key determinant of access is whether employer-based plans provide coverage. Insurance plans once routinely excluded coverage for contraceptives, even when virtually all other prescriptions and health care services were covered. There had been some improvement in coverage in the two decades before the ACA was passed due to state laws mandating certain benefits in insurance plans. But even then, insurers imposed co-pays and other cost-sharing devices that shifted much of the cost of birth control to patients. The ACA and the contraceptive mandate thus expanded the number of women who had insurance coverage for prescription contraceptives and eliminated cost barriers even for those who already had coverage. The percentage of American women paying for prescription oral contraceptives dropped from more than twenty percent to under four percent. Because of the mandate, more than fifty-five million women have access to free birth control. In addition to expanding women’s workplace opportunities, greater access to contraception contributes to fewer unintended pregnancies, fewer abortions, and fewer maternal deaths. But the mandate has been challenged repeatedly on grounds of religious freedom.
The Strange New War on Contraception
The war over the contraceptive mandate is a reflection of larger tensions in society—and a strange arc in which an issue on which there was once broad societal consensus is now divisive. Although the United States suffered a long era in which the law made it difficult, if not impossible, to access contraception—a federal law passed in 1873 restricted the sale and circulation of contraception among other “obscene” things—that era more or less ended in 1965 when the Supreme Court ruled in Griswold v. Connecticut (1965) that married couples have a constitutional right to access and use contraception. That ruling was critically important to the development of a robust constitutional right of privacy that would come to protect a wide range of decisions related to intimate relationships and reproduction—including, but not limited to, abortion, nonmarital sexual relationships, and marriage by same-sex couples. Justice William Douglas wrote in the majority opinion that the idea of government invading the marital bedroom is “repulsive to the notions of privacy surrounding the marriage relationship.” In 1972, the Court went further and found in Eisenstadt v. Baird that single people also had the right to use contraceptives. Regardless of marital status, the decision whether to have a baby was to remain free of “unwarranted governmental intrusion.”
Once it was established that adults in the United States had the right to buy and use contraception, the attention shifted to access. Who had the means and the ability to exercise this right? Scientifically speaking, the most important development was the birth control pill, which first became available in 1960. In 1970, (Republican) President Nixon signed Title X into law, which led to the creation of federally funded family-planning clinics across the country. This made birth control much more widely accessible to low-income women.
For decades after these important developments of the 1960s and 1970s, rights and access to contraception were not major sources of political controversy. Social and religious attitudes about birth control were not uniform, but it would have been shocking to see any major politician attack access to birth control or any legislature take steps to impair access. But the pendulum has shifted in the last 10-15 years, and the past few years have been witness to a series of astonishing attacks on access to birth control.
There are many surprising facets to this recent shift, but chief among them is the stark gap between political decisions and social attitudes. Virtually all sexually active women (99%) have used at least one form of birth control other than natural family planning, and the number is almost as high (98%) among women who practice Catholicism, which opposes all birth control methods other than natural family planning. Yet, the Trump administration has taken decisive action to impair access to birth control, ostensibly in the name of religious freedom. These actions are part and parcel of a party that has an evangelical base and that is suspicious, if not downright hostile to women’s equality. Only through this history can we understand the different sides of the contraceptive mandate dispute—and the way in which American women are being held hostage to the religious right and their grip on the White House.
Trump’s Campaign Against Reproductive Rights: Anti-Abortion and Anti-Contraception
In its first three years, the Trump administration took several steps to restrict access to abortion, but most of them impair access to contraception as well. He appointed two pro-life justices to the Supreme Court—Neil Gorsuch and Brett Kavanaugh—on the assumption that both would vote to overturn Roe v. Wade if given the opportunity. (Justice Kavanaugh is behaving exactly as predicted, as demonstrated in the first major abortion case since he joined the Court.) Those justices have joined the side that favors religious freedom over women’s equality, too, which was seen in the recent Little Sisters of the Poor opinion. Trump also reinstated the Mexico City Policy, also known as the “global gag rule,” that prohibits foreign non-governmental organizations from receiving U.S. aid if they perform abortions, even if funded with non-U.S. money, or provide any information about abortion to patients or clients. As I explain here, while the global gag rule was designed to reduce abortion worldwide by targeting all activities that might indirectly promote or facilitate abortion, research shows that it does not have that effect. More relevant to this column, it reduces access to contraception because family planning clinics have to close or curtail services because of the funding limitations. Even worse, Trump imposed an unprecedented domestic gag rule that has stripped Title X family planning funding from clinics that provide abortions (with non-government money), even though such clinics are the only source of contraception for many low-income women. His attacks on contraception have taken many forms, and, while some are still tied up in court, some have already caused significant harm to women.
Curtailing the Contraceptive Mandate
The Trump administration’s most direct attack on access to contraception came in 2017, when it attempted to curtail the contraceptive mandate.
The original contraceptive mandate included a narrow exception for certain religious employers, which was then extended to include many non-profit schools, hospitals, and charities, who might also object to the inclusion of contraception in their plans. In such cases, the cost would be passed from the employer to the insurer, which would, in turn, be reimbursed by the government for any contraception provided to employees covered by the exempt plan. The exception was broadened again by the Supreme Court’s ruling in Burwell v. Hobby Lobby, in which it held that a for-profit business with religiously devout owners could also take advantage of this exception, under the protections of the Religious Freedom Restoration Act of 1993, as long as they proffered “sincerely held” religious beliefs that were inconsistent with contraceptive use. (Hobby Lobby was in the news this year after defying pandemic-related orders to close on grounds that their religion required them to be open.) The owners of Hobby Lobby, along with owners of a few similar companies, objected to four approved contraceptive methods that might prevent pregnancy by interfering with the implantation of a fertilized egg in the uterine wall on the theory that those constitute “abortifacients” and are incompatible with a belief that human life begins at conception.
Hobby Lobby was a deeply flawed decision. Even if a for-profit corporation could somehow meaningfully engage in “the exercise of religion”—a dubious claim indeed—there is no reason to permit religious exercise that imposes the sacrifice on others. This shift in favor of religious liberty is not costless; indeed, as Justice Ruth Bader Ginsburg argued in her dissent in Hobby Lobby, there is a direct tie between control over reproduction and women’s ability “to participate equally in the economic and social life of the Nation. . . .”
After Hobby Lobby, the Supreme Court agreed to review another case about the contraceptive mandate, Zubik v. Burwell. This time, the question was whether asking an employer to opt-out of the contraceptive mandate was still too much of an intrusion on their religious liberty. The court ended up dismissing its grant of review because the parties agreed that religious employers could be left out of the process entirely—they would neither provide contraception nor opt out, and the insurer would independently cover contraception costs for employees insured under the plan.
The contraceptive mandate became the subject of dispute again in 2017, when the Trump administration issued interim regulations that permit employers with religious or moral objections to exempt themselves. Among the reasons given for rolling back the mandate is that access to contraceptives can promote “risky sexual behavior” among some teenagers and young adults. There is zero support for this claim, and, indeed, research shows that cutting off access to contraception and information about contraception (via, for example, abstinence-only education) does just the opposite.
These had the effect of drastically broadening an exemption that was drawn narrowly to accommodate objections by religious, non-profit employers. As rewritten, any employer can just say, “I don’t believe in birth control” and avoid the mandate. These regulations were challenged in a variety of lawsuits, one of which reached the Supreme Court this term.
The Ruling in Little Sisters of the Poor Saints Paul and Peter Home v. Pennsylvania
The basic question in this case was whether the Trump administration had the power to curtail the contraceptive mandate—and whether it followed the right procedures to do so.
Justice Clarence Thomas wrote the majority opinion, concluding that the federal agencies responsible for the two regulations had the authority to promulgate them. For the majority, the case presented a simple question of statutory interpretation. In short, the majority concluded that although Congress had required group health plans to cover preventive care and screenings for women, it left open the question of what services qualify and what exemptions might be appropriate to any mandated benefit. The relevant agencies could thus determine that even if contraception is deemed an essential health service, some employers should be exempt from providing it through their insurance plans. The majority also concluded that the Trump administration satisfied the requirements of the Administrative Procedures Act.
Chief Justice John Roberts and Justices Alito, Gorsuch, and Kavanaugh joined the majority opinion. Somewhat surprisingly, Justices Elena Kagan and Stephen Breyer concurred in the result. Justice Ginsburg dissented, and Justice Sonia Sotomayor joined her. One could read the entire majority opinion and the concurrence without having any sense of what’s at stake in this decision. As Justice Ginsburg wrote, “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. . . . [T]his 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.” She found no source of law that would justify allowing the “religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.”
Conclusion
The opinion in Little Sisters of the Poor is not riveting—and reasonable minds might disagree about the statutory interpretation or administrative law questions at the heart of the case. But what is riveting is the reckless disregard displayed by the Trump administration for women’s health and lives. This case should never have reached the Supreme Court because the exemptions at issue should not have been promulgated. They find no support in science or public policy, but instead operate like so many other Trump policies—a painful reminder that our lives are in the hands of an inexperienced madman. Access to contraception does not need to be—and should not be—a political issue.
