By Melinda Young

EXECUTIVE SUMMARY

The Affordable Care Act mandated that employers provide contraceptive coverage to workers at no cost. In July, the U.S. Supreme Court allowed a Trump administration regulation to let employers with religious or moral objections opt out of the mandate.

  • The Supreme Court’s decision could cause 120,000 people to lose access to birth control.
  • Survey data show that most Americans favor access to birth control.
  • The court decision hits low-income people seeking contraception and family planning clinics especially hard during the pandemic, which has caused millions of people to lose their health insurance.

It has been a difficult year for family planning clinics, reproductive health providers, and the people who seek their services. While providers struggled with dramatic changes to Title X funding, the COVID-19 pandemic hit, which made contraceptive access even more challenging.

In July, the Supreme Court dealt another blow: a 7-2 decision that allows employers to opt out of the Affordable Care Act (ACA) requirement that all health insurance plans include free coverage of contraceptives. (More information is available at: https://www.nytimes.com/2020/07/08/us/supreme-court-birth-control-obamacare.html.)

“This decision will harm the people who can least afford it: low income, people of color, young women, and groups that already have a difficult time accessing reproductive healthcare,” says Julie Rabinovitz, MPH, president and chief executive officer of Essential Access Health in Berkeley, CA. “Any rollback of the Affordable Care Act’s birth control benefit is especially appalling during this nationwide COVID-19 crisis.”

The decision could immediately affect 120,000 people, but it also could go much further. “Millions of people could ultimately lose their birth control coverage because of this,” Rabinovitz warns. “We’re very concerned about this. The issue of birth control has long been decided in the court of public opinion, and you need to expand access to birth control — not restrict it.”

Title X Funding in Jeopardy

Surveys continually show that a vast majority of Americans favor greater access to contraception for women, she adds. (Find out more at: https://www.vox.com/identities/2017/12/1/16720126/birth-control-trump-contraception-mandate.)

“We need to question why this administration will try to limit access to birth control when nearly everyone supports birth control funding,” Rabinovitz says.

Essential Access Health and other reproductive health advocates have fought with the Trump administration over the changes it imposed on Title X programs, which were forced to eliminate the word “abortion” from its reproductive health clinics or lose funding. As a result, many family planning centers withdrew from Title X, losing that funding. (For more information, see “Title X Problems Worse with Recent Court Decision” in the May 2020 issue of Contraceptive Technology Update at: https://www.reliasmedia.com/articles/146024-title-x-problems-worsen-with-recent-court-decision.)

“One of the reasons we sued the Trump administration over Title X regulations is because they changed the definition of ‘low income,’” Rabinovitz explains.

For Title X to be fully funded, it needs more than $700 million in funding. It is currently funded at $286 million, she says.

“You already don’t have enough funding to meet the needs of everyone who is a part of the program. Now, with the Supreme Court decision, here’s another 120,000 people that we’re going to put in the safety net program that’s already overburdened,” Rabinovitz adds.

In states where funding remains a big access challenge for reproductive health services, the Supreme Court’s decision makes things even worse.

“Specifically for Missouri, our safety net is already stretched very thin,” says Michelle Trupiano, MSW, executive director of the Missouri Family Health Council, Inc. The council works with health centers across Missouri. (See story in this issue on how family planning centers will cope in trying times.)

“There’s not a lot of funding for family planning services, so any time we’re putting more burden back on our most vulnerable citizens, that safety net is going to get stretched. Eventually, it’s going to break,” Trupiano says.

Mandate Reduced Unplanned Pregnancies

This new court decision comes on the heels of data that highlight the positive effect the ACA has had on birth control access.

“We’ve seen a decrease in unintended pregnancies and births for the first time in 30 years, and part of that is attributed to access to birth control through the Affordable Care Act,” says Bré Thomas, MPA, chief executive officer of the Arizona Family Health Partnership, a Title X grantee.

When legislation and court decisions chip away at those advancements, low-income people will lose access to contraceptives, she adds.

“If people have to make a choice during a pandemic between food, transportation, shelter, and [contraceptives], birth control will fall down on their list,” Thomas says. “Hopefully, they will have access to condoms or other forms of birth control to protect themselves, but they may not.”

While the ACA made birth control free for people with insurance, the Supreme Court’s ruling will make cost a factor again — at least for workers whose employers opt out of contraceptive coverage. These employees often earn too much to receive subsidies through Title X programs, but too little to afford the out-of-pocket costs.

“We’re very concerned that more women are going to have difficulty being able to afford their desired method of birth control,” she adds. “We know that people — not employers, government, or court — should be able to decide what’s best for them.”

Trupiano was not surprised by the Supreme Court’s decision, but she had hoped for a different outcome. “On a personal level, it just seems so outrageous to me that your employer can pay for everything except contraception,” Trupiano says. “It sends a message of control: ‘We’re going to control what you can and can’t do with your own body.’”

The Supreme Court case is about rules the Trump administration issued in 2018 to broadly allow any employer or nonprofit to be exempt from the contraception requirement if they have a religious or moral objection, says Liz McCaman, JD, MPH, staff attorney with the National Health Law Program in Washington, DC.

“The case was whether the 2018 rules, which are broad, are valid,” she explains. “The court said the administration had the right to do this, and that the way they did it was fine.”

Ruling May Have Unintended Effects

For an organization to claim the contraception exemption, they do not have to notify the public, but they do have to notify the insurer or third-party administrator, McCaman says. Also, they should notify employees about the change to benefits.

“It is concerning because this could set a precedent — not just with birth control that people claim an objection to, but every time someone doesn’t like the kind of healthcare,” McCaman says. “On the extreme end of the argument, it opens the door to people having objections to other healthcare services.”

While the court ruled about employers’ objections, the ruling does not address what employees decide and believe, she adds.

There are contraceptive and ACA cases that likely will continue to play out in lower courts, she notes.

“How this will exactly play out in the future, we’re arguing a guessing game,” McCaman says. “It means organizations have some room to make new decisions. Currently, there’s not a legal hurdle for that happening.”

The potential risk is any organization with a founder who has a religious objection could make changes to their health plan to exempt contraceptive coverage.

“There’s not a current legal hurdle for them doing that,” McCaman says. “Also, a moral objection means that any corporation could say they have a moral objection to providing it. What’s scary is this could happen very quietly.”

It is possible this same issue could return to the Supreme Court, McCaman says.

“Now, it will go to a lower court, and they’ll make a ruling on substance,” she says. “We don’t know how they’ll rule on that, but it seems likely that whatever the other side is, the other side will appeal it.”

The Supreme Court’s decision will significantly affect many states. “Already, we know that every dollar invested in family planning saves $7 down the pike in costs associated with unintended pregnancies,” Rabinovitz says. “We know there are millions of women who need birth control in this country.”

The ACA mandates have lowered rates of abortion and unintended pregnancies, she adds.

Any changes to the ACA that undo its provisions could have a negative effect. “We know publicly funded family planning works. There could be potentially an increase in unintended pregnancies, as a result, and teen births,” Rabinovitz says.

Some of the effects will depend on what employers decide to do about it. “Contraception is a pretty important benefit, and employees are not really happy when employers cut their benefits and don’t give them really good reasons for impacting their access to contraceptives,” McCaman says. “I don’t think there will be a huge swath of people in the wings, waiting to do this, if only because people would not want to work for them. It’s a tough line to walk.”

The most likely scenario is low-income workers will be hit the hardest. “No matter what their employers decide, they’ll go along,” she says.

Some states have programs that can help mitigate the problem. For example, California passed the Contraceptive Equity Act, which codified the ACA birth control benefit for state-regulated insurance plans. California also offers a program to help low-income people access contraception when they cannot obtain it through insurers, Rabinovitz says.

States that did not expand Medicaid under the ACA also could have harmful effects, she adds.

“State laws are important, but the states that pass laws that improve contraceptive access are liberal states. These leave out people in the Midwest and South, who are stuck with federal rules,” McCaman says. “Additional federal action is needed on this issue or else more people will be left behind when it comes to contraception.”