The Decision is Here!
a discussion of the Supreme Court's decision on Little Sisters of the Poor v. Pennsylvania
Photo by Jon Tyson on Unsplash
On Wednesday, the Supreme Court handed down their decision on the Little Sisters of the Poor v. Pennsylvania. By a 7-2 margin, the court affirmed that the Affordable Care Act gives the administration the authority to exempt employers with religious and moral objections from covering birth control in their employee’s insurance plans. While the decision looks like it was close to unanimous, a look at the multiple opinions provided helps us understand that this issue has not seen its last day in court.
The majority opinion, written by Justice Thomas, argues that the administration has the right to amend the Affordable Care Act (ACA) full stop. His opinion was joined by Justices Alito, Kavanaugh, Gorsuch, and Roberts. On its surface, the opinion appears to give the Health Resources and Services Administration (HRSA) carte blanche to change the contours of the rules of the ACA. This reasoning opens the door for new challenges to other ACA health mandates like immunizations. Because the opinion states the HRSA has the capacity to make the rules changes, it does not address the important Religious Freedom Rights Act arguments.
Justice Kagan, along with concurring Justice Breyer, voted with the more conservative block, agreeing that HRSA has the right to make changes. However, they argue that the changes were made in an “arbitrary and capricious” manner that could be challenged. Justice Kagan’s opinion relies on the issue as to whether the Health Resources and Service Administration (HRSA) can change the rules based on political whims rather than real legal issues. While the Little Sisters of the Poor felt complicit in providing birth control just by reporting that they were not doing so, not all religious organizations felt this way.
Justice Kagan writes, “…even as they sought to protect employers with continuing religious objections. But they failed to fulfill that commitment to women….The Departments’ contrary decision to extend the exemption to those without any religious need for it yielded all costs and no benefits…I question whether the exemptions can survive administrative law's demand for reasoned decision making. That issue remains open for the lower courts to address."
Justice Ginsburg, with Justice Sotomayor concurring, voted against the Little Sisters noting in her opinion that Congress gave the HRSA the authority to designate the preventive care that insurers must provide. But, they also must use the Women’s Health Amendment for guidance. She also noted that the Religious Freedom Rights Act does not condone harm to third parties because of the exemption. Unfortunately, the exemption does harm women, up to 126,000 of them.
So where does this decision leave us? For now, companies that provide health insurance for their employees must have insurance policies that cover birth control at no cost to the employee. However, an exemption is granted if the employer has a moral or religious exemption to providing birth control. There is no way for a prospective employee to know if an employer has a moral objection. Women will either have to ask about birth control coverage prior to accepting an offer of employment or roll the dice to see if it is covered. Obviously, no employee wants to be in a situation where they are discussing their reproductive capacities with a potential employer.
The fact that the Court did not take into account the effect that this decision would have on over 100,000 women is dispiriting. But the fight will certainly go on, so let us take a look at issues that the decision brings up for women whose birth control is not covered by their employer’s insurance.
By ignoring the fact that free access to birth control not only gives women the autonomy they deserve but the Court also solidifies the perception that birth control is optional to a woman’s health. It is not.
All arguments against birth control take a medically necessary part of the full spectrum of women’s health and put them outside of the actual healthcare conversation. If for some reason, the Little Sisters of the Poor had a religious objection to covering kidney transplants, I believe the Court would have found a way for the procedure to be covered. By ignoring the fact that free access to birth control not only gives women the autonomy they deserve, the Court solidifies the perception that birth control is optional to a woman’s health. It is not and it is time to stop that thought process. Women need access to birth control to:
Prevent conception in order to work to their full potential and plan conception
Regulate their period, especially with serious cramping and bleeding leading to anemia
Treat endometriosis, a serious condition that can lead to infertility and ovarian cancer
Treat menstrual migraines
Treat hormonal acne
In fact, up to 14% of women on birth control pills use them exclusively for health purposes, not for contraception. When we take one part of a person’s healthcare and decide that it is optional, we are saying they do not deserve full healthcare. That might seem like an extreme statement, but let’s take a look a little more deeply into the issue and facts.
The main complaint of the religious (and moral) groups is that they do not believe women should be able to prevent the conception of a baby. Ok, that’s fine for those folks. But, for those who do not hold those beliefs, there is a significant cost. Women who do not have access to free birth control from their medical providers are much more likely to have an unplanned pregnancy. The cost of that unplanned pregnancy to the woman is staggering. First, she loses up to $16,000 per year in wages on average if she is even able to continue working. Second, simply being pregnant in the United States has become more and more dangerous over the past 35 years. The U.S. has the worst maternal mortality rate of all developed countries and the rate increases every year. According to the CDC, the U.S. went from 10 deaths/100,000 pregnancies in 1987 to 16.9 deaths/100,000 in 2016 overall. For women of color, that statistic goes up to 40.8 deaths/100,00 for black women and 29.7/100,000 for Native American women. Because birth control is so tightly connected to pregnancy rates, we must take these sobering statistics into account.
The most obvious issue this case raises is that women are beholden to employers for their insurance. Those insured by the federal government have access to paid birth control including Medicaid recipients. Moving to a government-sponsored health care plan for everyone would remove this barrier. By allowing employers to no longer cover birth control, the government is making women pay for prescriptions that would otherwise be covered. There does not appear to be an exemption for doctors to write prescriptions for birth control pills for medical reasons beyond birth control. Yet, they will cover drugs for other diseases that affect the fetus. For example, if you take Methotrexate for Rheumatoid Arthritis, you must go off the drug for 12 weeks before trying to conceive to prevent miscarriage. Wouldn’t it be smart to allow those on this type of drug to have access to birth control while taking it? It seems that for those who are interested in having healthy babies, there is an appropriate role for birth control. The minutiae of each person’s health situation are not one in which employers should have a say. The right to privacy extends to a woman’s health.
It is not lost on me that the five justices who signed onto the opinion without any doubt were all men. And while Justice Kagan also voted in favor of the Little Sisters of the Poor, her opinion clearly invites another challenge. The fact that the Court found that it is more important for the HRSA to have the ability to rewrite parts of the ACA than to ensure that women were not harmed by this decision is reprehensible and not in the spirit of the law. No doubt advocacy groups are preparing another challenge to HRSA’s “arbitrary and capricious” rewriting of the rules. In the meantime, over 100,000 women will have to find other ways to have their birth control costs covered.