By Susan McLoughlin and Rachel Sedehi
Under the Trump administration, equal rights to health care are diminishing. Two recent Supreme Court decisions show why this is not surprising.
The 2012 Affordable Care Act (ACA) mandates that all employers provide birth control coverage for their workers.[1] Previously, only faith-based organizations were eligible to be excused from this. In order to receive a religious exemption, they would have to undergo a comprehensive evaluation with a strict set of standards. If they qualified for a religious exemption, these employers were still obligated to accommodate their employees by finding birth control coverage through a third-party provider. However, on July 8, 2020, the Supreme Court upheld the Trump administration’s regulations to expand the list of those eligible for exemption beyond religious employers. Now, any company that feels providing birth control violates their moral code can be considered for exemption. The evaluation’s standards have also been broadened so that more exemptions can be granted than ever before. Those excused from the ACA mandate no longer need to find alternative sources of coverage for their employees. Essentially, previous ACA regulations allowed some religious employers to say “I am personally not comfortable with giving you this, but I can find someone who is,” but now nearly anyone can say that “I don’t want you to have this at all.”
John Bursch, a lawyer with a Christian-based legal advocacy group, the Alliance Defending Freedom, celebrated the decision, saying that “[t]he government has no business forcing pro-life and religious organizations to provide drugs and devices that can destroy life.” [2] In this statement, Bursch’s concerns relate only to abortion, but abortion is not birth control; it is a measure taken after fertilization.[3] Birth control prevents conception, limiting the number of abortions that Bursch and other pro-lifers are so concerned about. However, the court’s ruling adds yet another pro-religion case to a recent wave of other Trump court cases and laws that are religiously motivated.
The latest threat to health care for all includes the Department of Health and Human Services’ new rule that lifts nondiscrimination protections for LGBTQ+ people.[4] The language of the rule specifically targets the definition of “sex,” essentially eliminating transgender people’s right to healthcare. The Trump administration originally proposed these changes in the “Conscience” Rule in late 2019, declaring that doctors have the individual right to reject health care services for any patient who they could not “consciously” serve.[5] The rule was struck down by a U.S. District judge in late 2019 for including violations of federal law that were “numerous, fundamental, and far-reaching.” Despite the rightful dismissal of the Conscience Rule, the most current Supreme Court case on birth control began with the Little Sisters of the Poor’s fight for their “conscious rights.” The Little Sisters of the Poor is a non-profit Catholic organization run by nuns that provides the elderly poor with hospice care.[6] The nuns feel that birth control coverage is a religious burden and want nothing to do with it.
The “Separation of Church and State” may no longer exist; in fact, they seem to have merged.
In response to the Supreme Court’s verdict, Justice Ruth Bader Ginsberg wrote that “...the court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”[7] In other words, religion is not a valid reason to deny someone health care, and birth control is undeniably a part of health care. Religious women themselves take advantage of this form of health care. In a study done by the Center of Disease Control and Prevention, 87.5% of religious women reported using birth control – more specifically, 87.3% of Catholic women, 90.5% of women affiliated with Baptist and fundamentalist Protestant denominations, and 89.8% of women of other Protestant groups.[8] Birth control is not uncommon; about 65% of the 72.2 million American women aged 15-49 are currently using contraception.[9] However, not all of these women, religious or not, use birth control exclusively for pregnancy prevention. There are multiple health benefits to birth control methods like the pill. The pill can help to reduce bone thinning, prevent cysts in one’s breasts or ovaries, and minimize the negative aspects of one’s menstrual cycle, which can be debilitating for some women. It can also reduce the likelihood of more fatal problems, like serious infections of the reproductive organs, ectopic pregnancies, and prevent endometrial and ovarian cancers.[10] If religious employers and others are morally offended by birth control, are they also not offended with ectopic pregnancies, bone thinning, and cancer?
No one should ever have to explain or justify why they need health care. Birth control is health care: it is not a matter of want, but a matter of need – and the Trump administration and the conservative Supreme Court have allowed employers to undermine, deny, and personally define the rights of their workers. Those who do not condone the use of birth control often do not support legalized abortion, either. If employers’ greatest concern is “destroying life,” then they should consider that more than 90% of abortions take place due to unintended pregnancies. A 2012 study at Washington University showed that providing birth control coverage to women cuts abortion rates by 62-78% compared to the national rate.[11] If religious employers and organizations morally offended by birth control truly wanted to be proactive about denying reproductive rights, then providing birth control to their employees is actually the “conscience” thing to do.
The reality is that this decision, which gives employers the choice to opt out of accommodations that were formerly mandated under the ACA, will disproportionately affect economically disadvantaged populations. Let’s break down the demographics:
Each year, about 50% of all pregnancies in the U.S. are not planned, and half of these pregnancies are a result of women not using contraception.[12] In 2017, the CDC announced that teen pregnancy in the U.S. was at a historic low, and this was in part due to the fact that sexually active teens had more access to birth control than in previous years.[13] In addition, a report conducted by the Guttmacher Institute found that granting legal access to birth control to people aged 17-18 correlates to more women attending post-secondary education and being employed as well as an increase in earning power.[14] Thus, granting young people legal access to affordable birth control has a multitude of positive impacts. We also know that young adult women, who are most at risk to experience unintended pregnancies, are also more at risk to experience poverty.[15] In 2018, the poverty rate in women aged 35-44 was 12.97%, yet this rate dramatically increased to 23.1% in younger women aged 18-24.[16] Additionally, a poll conducted in 2010, before the ACA’s birth control provision was in effect, showed that 55% of women voters aged 18-34, as compared to 34% of women voters of all ages, struggled to afford birth control.[17]
The statistics change even more drastically when looking at rates of poverty between white, non-Hispanic women, and women of color in America. According to data from the 2016 U.S. Census Bureau, 9.7% of white, non-Hispanic women live in poverty. In stark contrast, 22.8% of Native women, 21.4% of Black women, 18.7% of Latina women, and 10.7% of Asian women live in poverty.[18] It is also important to consider that there are people other than cisgender women who use birth control, including transgender men and non-binary folks. We know that the LGBTQIA+ community, particularly transgender people of color, experience poverty at higher rates than non LGBTQIA+ people.[19]
Populations that are already at a higher risk for unintended pregnancies means they are struggling to access birth control even under the regulations of the ACA. Yes, the risk of unintended pregnancy is highest among young adult women, but more specifically, these rates are highest among low-income women and women of color.[20] The unintended pregnancy rate for non-Hispanic black women in 2011 was more than double when compared to non-Hispanic white women.[21] In addition, Latinx teen pregnancy rates are more than 1.5 times higher than the national average.[22] Taking a closer look at who can afford birth control, a national survey conducted in 2017 showed that only 39% of Black women aged 18-44 could afford birth control that was $10 or less.[23] It is clear which populations are going to suffer the consequences of this rollback of accessible/affordable birth control, but what happens if these populations’ employers decide not to cover their birth control and opt out of accommodations? Will these statistics continue to rise so drastically?
The Trump administration’s rollback of sexual/reproductive healthcare, women’s, and LGBTQIA+ rights is not new. Here are other harmful policies that have been implemented thus far:
One of the first things Trump did when taking office was to not only reinstate but to expand the restrictions of the Global Gag Rule. This rule bans international organizations from receiving U.S. funding if they “refer, provide, or even mention abortion or abortion related services,” meaning that Trump asserted power over our bodies here in the U.S., and internationally.[24] In 2019, the Title X Gag Rule was implemented, which essentially accomplishes the same thing as the Global Gag Rule but bans these types of grants within the U.S. Because of this domestic gag rule, it is estimated that 981 clinics in the U.S. that provided patients with services such as low-cost birth control, breast and cervical cancer screenings, and STD testing, no longer receive Title X funding.[25]
The Trump administration has also taken an outlandishly hard stance regarding language used within UN documents. In April 2019, U.S. officials threatened the use of their veto power in the UN Security Council in order to remove language such as “sexual and reproductive health” and “gender” from a resolution.[26] This specific resolution, which targeted the use of sexual violence as a weapon of war, was only passed after such language was removed. In a clear attempt to dismantle official recognition of transgender people, the administration argued that the term “gender” should be replaced with “women and girls” in all UN documents.[27] They also claim that terms such as “sexual and reproductive health” are too closely related to abortion services, which they have taken a very strong position against.[28]
Most recently, the U.S. Department of Education’s new Title IX rules are yet another example of the current administration rollback of women’s rights as well as access to reproductive/sexual healthcare. Title IX was created in 1972 and made it illegal for federally funded educational institutions to discriminate against their students or employees on the basis of sex.[29] Today, we commonly hear about Title IX on college campuses and how it is used to protect students after incidences of sexual harassment or assault. Yet, these new Title IX rules, created by U.S. Secretary of Education Betsy DeVos, essentially weaken such protections in an explicitly stated attempt to reduce the number of sexual harassment/assault investigations in schools.[30] Some examples of these rules include requiring schools to dismiss cases of sexual harassment/assault that occur in study abroad programs or outside of a school sanctioned programs as well as allowing schools to use re-traumatizing procedures during an investigations such as a live cross-examinations and presuming the harassment/assault never occurred.[31] In addition, these new rules expand religious exemptions and allow for institutions who believe they have such exemptions to discriminate based on sex without informing the Department of Education or their students.[32] This will be extremely harmful to students who currently access or are attempting to access birth control or abortion services on campus.
What can we do to continue this fight for sexual/reproductive healthcare, women’s, and LGBTQIA+ rights?
If there is one piece of information you should gain from this article, it is that our Supreme Court justices make landmark decisions about every aspect of our lives – but don’t let that make you feel your livelihood is completely out of your hands. Instead, you should recognize how vital it is, now more than ever before, to vote in the upcoming election. Currently, there are five conservative Supreme Court justices and four liberal justices, at least one of whom will most likely retire very soon. Another four years of the Trump administration means more conservative justices and more rollbacks of sexual/reproductive healthcare, women’s, and LGBTQIA+ rights. Election day is November 3rd, and if you are mailing in your ballot you need to do so by October 20th. So please, if you can, go out and vote - this is your chance to make a real difference. And remember, no matter who you are and no matter what reason you use it, access to affordable birth control is a human right.
References
[1] Radhakrishnan, Swapna Reddy Nina Patel Priya. “ACA's Birth Control Mandate At The US Supreme Court: What's At Stake?” Health Affairs, May 4, 2020. https://www.healthaffairs.org/do/10.1377/hblog20200430.180292/full/.
[2] Liptak, Adam. “Supreme Court Upholds Trump Administration Regulation Letting Employers Opt Out of Birth Control Coverage.” The New York Times. The New York Times, July 8, 2020. https://www.nytimes.com/2020/07/08/us/supreme-court-birth-control-obamacare.html.
[3] “Birth Control and Abortion: Methods, Rates, and Research.” Pandia Health, April 24, 2020. https://www.pandiahealth.com/resources/birth-control-abortion/.
[4] Simmons-Duffin, Selena. “Transgender Health Protections Reversed By Trump Administration.” NPR. NPR, June 12, 2020. https://www.npr.org/sections/health-shots/2020/06/12/868073068/transgender-health-protections-reversed-by-trump-administration.
[5] Simmons-Duffin, Selena, and Colin Dwyer. “Judge Scraps 'Conscience' Rule Protecting Doctors Who Deny Care For Religious Reasons.” NPR. NPR, November 6, 2019. https://www.npr.org/sections/health-shots/2019/11/06/776765601/judge-scraps-conscience-rule-protecting-doctors-who-deny-care-for-religious-reas.
[6] Hawley, Erin. “The Little Sisters of the Poor Should Finally Get Their Win.” The Hill, May 13, 2020. https://thehill.com/opinion/judiciary/497416-the-little-sisters-of-the-poor-should-finally-get-their-win.
[7] Liptak, Adam. “Supreme Court Upholds Trump Administration Regulation Letting Employers Opt Out of Birth Control Coverage.” The New York Times. The New York Times, July 8, 2020. https://www.nytimes.com/2020/07/08/us/supreme-court-birth-control-obamacare.html.
[8] Daniels K, Mosher WD, Jones J. Contraceptive methods women have ever used: United States,
1982–2010. National health statistics reports; no 62. Hyattsville, MD: National Center for
Health Statistics. 2013.
[9] Davis, Kimberly, and Joyce C. Abma. “Products - Data Briefs - Number 327 - December 2018.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, February 14, 2019. https://www.cdc.gov/nchs/products/databriefs/db327.htm.
[10] Planned Parenthood. “What Are the Benefits and Advantages of Birth Control Pills?” Accessed August 4, 2020. https://www.plannedparenthood.org/learn/birth-control/birth-control-pill/what-are-the-benefits-of-the-birth-control-pill.
[11] Williams, Diana Duke. “Access to Free Birth Control Reduces Abortion Rates.” Washington University School of Medicine in St. Louis. Washington University School of Medicine in St. Louis, December 14, 2018. https://medicine.wustl.edu/news/access-to-free-birth-control-reduces-abortion-rates/.
[12] Williams, Diana Duke. “Access to Free Birth Control Reduces Abortion Rates.” Washington University School of Medicine in St. Louis. Washington University School of Medicine in St. Louis, December 14, 2018. https://medicine.wustl.edu/news/access-to-free-birth-control-reduces-abortion-rates/.
[13] “About Teen Pregnancy.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, March 1, 2019. https://www.cdc.gov/teenpregnancy/about/index.htm.
[14] Sonfield A. et al., The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children, New York: Guttmacher Institute, 2013, .
[15] Planned Parenthood. “Survey: Nearly Three in Four Voters in America Support Fully Covering Prescription Birth Control.” Accessed August 4, 2020. https://www.plannedparenthood.org/about-us/newsroom/press-releases/survey-nearly-three-four-voters-america-support-fully-covering-prescription-birth-control.
[16] Duffin, Erin. “Poverty Rate in the U.S. by Age and Gender 2018.” Statista. Statista, October 17, 2019. https://www.statista.com/statistics/233154/us-poverty-rate-by-gender/.
[17] Planned Parenthood. “Survey: Nearly Three in Four Voters in America Support Fully Covering Prescription Birth Control.” Accessed August 4, 2020. https://www.plannedparenthood.org/about-us/newsroom/press-releases/survey-nearly-three-four-voters-america-support-fully-covering-prescription-birth-control.
[18] Patrick, Kayla. Issue Brief. National Snapshot: Poverty Among Women and Families, 2016. National Women's Law Center, 2017. https://tgpdenver.org/file_download/inline/63c5d2d7-4d29-4c81-a2bf-27bb50d47513.
[19] Planned Parenthood. “Who's Impacted by Attacks on Birth Control.” Accessed August 4, 2020. https://www.plannedparenthoodaction.org/fight-for-birth-control/facts/whos-most-impacted-by-attacks-on-birth-control.
[20] Rep. Unintended Pregnancy in the United States. Guttmacher Institute, January 2019. https://www.guttmacher.org/sites/default/files/factsheet/fb-unintended-pregnancy-us.pdf.
[21] Rep. Unintended Pregnancy in the United States. Guttmacher Institute, January 2019. https://www.guttmacher.org/sites/default/files/factsheet/fb-unintended-pregnancy-us.pdf.
[22] Planned Parenthood. “Who's Impacted by Attacks on Birth Control.” Accessed August 4, 2020. https://www.plannedparenthoodaction.org/fight-for-birth-control/facts/whos-most-impacted-by-attacks-on-birth-control.
[23] “The Lives and Voices of Black America on the Intersections of Politics, Race, and Public Policy.” Publitas. Perry Undem Research/Communication, September 25, 2017. https://view.publitas.com/perryundem-research-communication/black-american-survey-report_final/page/1.
[24] “Tracking Trump - Global Gag Rule.” Planned Parenthood Action Fund. Accessed August 4, 2020. https://www.plannedparenthoodaction.org/tracking-trump/policy/global-gag-rule.
[25] “Tracking Trump - The Title X Gag Rule.” Planned Parenthood Action Fund. Accessed August 4, 2020. https://www.plannedparenthoodaction.org/tracking-trump/policy/title-x-gag-rule.
[26] Doorley, Nina Besser. “Trump Administration Escalates War on Words at the UN.” International Women's Health Coalition. International Women's Health Coalition, April 30, 2019. https://iwhc.org/2019/04/trump-administration-escalates-war-words-un/.
[27] Borger, Julian. “Trump Administration Wants to Remove 'Gender' from UN Human Rights Documents.” The Guardian, October 25, 2018. https://www.theguardian.com/world/2018/oct/24/trump-administration-gender-transgender-united-nations.
[28] Doorley, Nina Besser. “Trump Administration Escalates War on Words at the UN.” International Women's Health Coalition, April 30, 2019. https://iwhc.org/2019/04/trump-administration-escalates-war-words-un/.
[29] “History of Title IX.” Women's Sports Foundation, August 13, 2019. https://www.womenssportsfoundation.org/advocacy/history-of-title-ix/.
[30] “DeVos's New Title IX Sexual Harassment Rule, Explained.” National Women's Law Center, July 21, 2020. https://nwlc.org/resources/devos-new-title-ix-sexual-harassment-rule-explained/.
[31] “DeVos's New Title IX Sexual Harassment Rule, Explained.” National Women's Law Center, July 21, 2020. https://nwlc.org/resources/devos-new-title-ix-sexual-harassment-rule-explained/.
[32] “DeVos's New Title IX Sexual Harassment Rule, Explained.” National Women's Law Center, July 21, 2020. https://nwlc.org/resources/devos-new-title-ix-sexual-harassment-rule-explained/.