Defending New Ground in Reproductive Rights

May 31, 2017

*This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

by Katie O’Connor

In a couple of critical ways, this decade has seen a recommitment and expansion of access to reproductive health care for all Americans. To start off the decade, in early 2010, President Obama signed the Affordable Care Act, drastically reducing the number of Americans without health insurance. Between 2013 and 2015, the proportion of 15-44 year old women who were uninsured in the country fell by 36 percent, largely as a result of the ACA’s Medicaid expansion and subsidized private coverage. Moreover, the ACA guaranteed full coverage of all FDA-approved contraceptives for women. All told, millions of women who might have struggled in the past to afford contraception (and other reproductive health care), or who might have gone without, now have access as long as the protections of the ACA remain in place.

While the ACA put access to contraception and other reproductive health services within reach for many Americans, it failed to guarantee coverage for abortion and allowed states to ban abortion coverage in their ACA marketplace plans. Nevertheless, reproductive rights advocates found reason to celebrate a victory for the right to abortion in 2016. That year, in Whole Woman’s Health v. Hellerstedt, the Supreme Court forcefully reaffirmed the constitutional right to abortion and added teeth to the “undue burden” standard that was adopted two and a half decades ago. The case challenged two parts of Texas’s House Bill 2 – the “admitting privileges requirement,” which required abortion providers in the state to have admitting privileges at a nearby hospital, and the “surgical-center requirement,” which required abortion clinics to meet expensive and often unnecessary standards as ambulatory surgical centers. The two requirements, if allowed to go into full effect, would have forced over 75 percent of the state’s abortion facilities to close. In overturning the Fifth Circuit’s opinion upholding both provisions, the Court reiterated the undue burden standard from Planned Parenthood v. Casey and clarified that the standard requires a balancing of burdens and benefits. In assessing challenges to restrictions on abortion, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Moreover, the Court rejected the notion that “legislatures, and not courts, must resolve questions of medical uncertainty” and made clear that courts should consider evidence of a restriction’s medical benefits presented during judicial proceedings in addition to legislative findings, if any, in determining the restriction’s constitutionality. Whole Woman’s Health built upon existing precedent, reinforced the constitutional right to abortion and provided further guidance for courts considering restrictions on the right. In doing so, the Court dealt a blow to sham abortion restrictions that purport to make abortion safer but really just make it less accessible.

While the protections of the ACA and the renewed strength of the constitutional right to abortion from Whole Woman’s Health created a sense of momentum for the reproductive rights movement, there have been serious setbacks, and we face several looming threats in the immediate future. First, the ACA’s guarantee of full coverage for contraception has been limited by accommodations and exemptions for employers who have religious objections to contraception. Shortly after passage of the ACA, the Obama administration worked with various stakeholders to accommodate churches, religious institutions and religious non-profit organizations who had religious objections to some forms of contraception. Under the accommodations, religious entities were either exempt from the coverage requirement, or were able to pass the burden to insurers to meet the requirement. Nevertheless, legal challenges to the coverage requirement arose. In Hobby Lobby v. Burwell, the Court held that at least some for-profit companies whose owners hold religious objections to contraception must be afforded the same accommodation that religious non-profit organizations are afforded. After the universe of employers who could seek accommodations under the contraceptive coverage requirement was expanded in Hobby Lobby, the accommodation process itself was thrown into question. In a 4-4 decision in Zubik v. Burwell, the Court remanded a challenge by religious non-profit organizations who claimed that their religious beliefs were burdened by the administrative requirements of seeking the accommodation in the first place. In remanding the case, the Court pled with the parties and lower courts to come to an agreement, but only time will tell if that is possible.

In the meantime, Congress is still pursuing legislation to repeal the ACA and the Trump administration has signed a “religious liberty” executive order, both of which could further limit the accessibility of abortion, contraception, and other reproductive health care. The ACA repeal bill that passed the House in early May could strip 23 million Americans of health coverage, defund Planned Parenthood, effectively institute a nationwide ban on private insurance coverage of abortion, reopen the door to charging women more for coverage and allow insurance providers to eliminate essential benefits like maternity coverage and newborn care. Though the bill does not specifically repeal the birth control coverage mandate, those who lose coverage altogether will obviously lose coverage for birth control, too. Defunding Planned Parenthood, which is also proposed (and expanded) in the administration’s draft budget, would have a devastating impact on access to contraception for millions of Americans. Furthermore, the executive order that was signed by the president on the very same day the bill passed the House will further allow employers, schools and other entities to refuse to cover birth control and other reproductive health services in their insurance plans on the basis of religious or moral objection. The potential impact of the final ACA repeal bill is hard to estimate, since the Senate must still take up the measure, but all signs indicate that millions will lose coverage under any of the iterations, and some members of Congress will also seek to eliminate the contraceptive coverage requirement altogether. The executive order on religious liberty could seriously limit birth control coverage in the interim.

Defending recent gains in reproductive rights, and fighting back against new threats, will undoubtedly occupy much time and energy over the next year. Anticipated threats to reproductive rights from Congress and the new administration will call into question the gains that were made over the past few years, and state legislators may feel newly emboldened by the conservative electoral victory of last November. Will politicians continue to attack the right to abortion despite the Supreme Court’s recent rebuke in Whole Woman’s Health? Will religious accommodations and exemptions swallow rules guaranteeing the provision of contraception, abortion and other reproductive services? Will those guarantees even survive this Congress? With the executive branch, both houses of Congress, and a majority of the states under Republican control, might anti-choice legislators make changes in the law for which they lack popular support? And if they do, how will the pro-choice majority of Americans respond? These and other topics will be explored during the “Defending New Ground in Reproductive Rights” panel discussion on June 9, 2017 at the ACS National Convention. Experts Jacqueline Ayers, Elizabeth Price Foley, Julie Rikelman, Reva Siegel and moderator Linda Greenhouse will explore the advances, setbacks, threats and opportunities for reproductive rights in the coming years.