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Contraception Ruling May Worsen Disparities, Advocates Warn

July 9, 2020, 3:00 PM

The Supreme Court’s decision to uphold Trump administration regulations that broaden an employer’s ability to deny workers birth control coverage could have dire consequences for Black and low-income people, health advocates warn.

The decision comes at a time when the nation is witnessing a movement to address longstanding discrimination and inequality experienced by people of color. Advocates and health law scholars say the ruling could exacerbate racial inequalities that already exist in health care by expanding barriers to critical preventative care and quality family planning that can improve the overall health of marginalized people.

“The more we create carve outs, the harder it gets, especially for people who are already vulnerable either because they’re low-income or part of a population that has a harder time accessing care either because of structural racism or historic disparities in care,” said Nicole Huberfeld, a health law professor at Boston University School of Law and School of Public Health.

Racial disparities in health and health care have persisted and in some cases widened over time, according to Kaiser Family Foundation analysis.

It found that Black and American Indian or Alaska Native individuals continue to fare worse compared to White individuals across most examined measures of health status, including physical and mental health status; birth risks; infant mortality rates; HIV and AIDS diagnoses; and death rates.

The Trump administration rules expanded the exemption afforded to churches from the requirement in Obamacare guidelines that all employers must offer birth control coverage in their health plans. The rules provide an exemption for any employer that objects based on a sincerely held religious belief or has a sincerely held moral objection to covering contraception.

The Supreme Court on Wednesday held the Trump administration had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.

Plain Meaning

The Trump rules allow any employer, even a publicly traded for-profit company to benefit from the religious exemption, which was previously reserved for houses of worship, Justice Ruth Bader Ginsburg said in her dissenting opinion, which Justice Sonia Sotomayor joined.

For-profit companies account for nearly 90% of private sector employment across America, the American Association of University Women and other groups working on behalf of female employees and students said in an amicus brief in support of Pennsylvania, which challenged the rules.

“If even a fraction of these for-profit employers were to take advantage of the Final Exemption Rules, millions of women could immediately be denied contraceptive coverage,” the groups said.

But in the court’s majority ruling, Justice Clarence Thomas said concerns that women will be adversely affected “cannot justify supplanting” the Affordable Care Act’s plain meaning.

The court’s broad ruling allows an employer that has a religious or moral objection to take away contraception coverage from its employees, said Brigitte Amiri, deputy director at the American Civil Liberties Union’s Reproductive Freedom Project.

But she’s not convinced a great number of employers will jump at the chance to do so.

“A much smaller subset of employers are actually going to take advantage of the Trump rules if they were to take effect,” Amiri said.

“Most of us that have coverage will not lose it,” she said.

Other advocates expect a substantial number of employers to take advantage of the new conscience protections.

“Now religious employers will be able to go about their missions without having to fear that following their sincerely held beliefs will carry potentially devastating financial penalties,” said Frank Scaturro, vice president and senior counsel at the Judicial Crisis Network, a conservative legal group.

Over the course of litigation, not a single woman was identified as having been unsuccessful in obtaining contraception, he said, noting there are other ways women can obtain contraception, including federal, state, and local programs that provide free or subsidized contraceptives.

In a statement following the ruling, Health and Human Services Secretary Alex Azar said the government can “advance the goal of protecting access to healthcare and social services, while simultaneously protecting and respecting sincerely held religious beliefs and moral convictions.”

Advocates, however, say the ruling keeps White executives in control of their employees’ reproduction.

People who are upper-middle class can probably pay out of pocket for their birth control, even though they shouldn’t have to, without jeopardizing their housing or ability to eat, said Liz McCaman, a staff attorney at the National Health Law Program, a group that works to protect and advance the health rights of low-income and under-served individuals and families.

In an amicus brief, the Civil and Human Rights Clinic at Howard University School of Law said the exemptions deny African Americans equal access to health care and that denial can be disastrous for Black women and their families, many of whom still live in segregated areas that provide insufficient access to health care.

“Unintended pregnancies not only limit the earning potential of women, but combined with the lack of adequate medical care during pregnancy, place the lives of African-American women in immediate jeopardy,” the clinic said.

Room for Reversal

While a win for advocates of religious liberty, the court’s ruling leaves the door open for a new administration to reverse the Trump administration rules.

“The majority opinion says there’s no problem with the process by which the Department of Health and Human Services and the other federal departments arrived at this decision,” Huberfeld said. “So this process could be repeated in reverse under a new administration.”

Meanwhile, a group of House Democrats that include Reps. Diana DeGette (D-Colo.), Judy Chu (D-Calif.), Barbara Lee (D-Calif.), and Lois Frankel (D-Fla.) announced plans to file legislation to repeal the rules.

“A decision about whether to use birth control is one that should be between a patient and their doctor—and no one else,” the lawmakers said in a statement. “Giving an employer the ability to interject themselves in that decision—by limiting a patient’s access to free birth control—is unconscionable.”

There may also be more litigation to come over the rules.

“The court makes clear in its various opinions that there are claims they were not deciding that the Pennsylvania attorney general could continue to pursue after the case goes back down to the district court,” Amiri said.

“So this is an opportunity for the Pennsylvania attorney general to seek to block the rule again under a different legal theory.”

The case is Little Sisters of the Poor Sts. Peter & Paul Home v. Pennsylvania, U.S., No. 19-431, decision 7/8/20.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Brent Bierman at bbierman@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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