//  5/6/20  //  Commentary

By Jonathan Miller and LiJia Gong | Public Rights Project

Women are uniquely impacted by the coronavirus. Domestic violence has surged; industries in which women provide an outsized portion of the labor force – service, retail, and childcare – are being crushed by the economic fallout; and incidents of sexual harassment by landlords have reportedly increased. Women are also experiencing disruptions in sexual and reproductive health care during the peak of the pandemic.

In the realm of health care delivery, some of the barriers women experience may be a necessary by-product of social distancing, but others are entirely avoidable. The U.S. Supreme Court is currently considering one such impediment, and we co-authored an amicus brief on behalf of 32 cities and counties arguing that the context of the current crisis must be taken into account and urging the Court to strike down two federal regulations rolling back the contraceptive mandate.

In October 2017, the Trump administration sought to weaken protections under the Affordable Care Act by significantly expanding exemptions to the requirement that employers’ health plans include no-cost contraceptive care. Under these new rules, most employers are eligible to assert an objection – whether religious or moral – to the provision of contraceptive care, so long as it is “sincerely held.” Businesses only need to claim the exemption through their health plan administrator. No one scrutinizes its veracity.

These rules reflect a massive departure from the Supreme Court’s narrow ruling in 2014 permitting family-owned private companies like Hobby Lobby to gain a religious accommodation from the contraceptive mandate. Even then, plan beneficiaries were ensured seamless access to care without copays or deductibles. The new exemptions give businesses the choice to eliminate the accommodation altogether.

The Women’s Health Amendment to the Affordable Care Act created a sea-change in contraceptive care. More women could choose long-acting reversible contraception like IUDs – the most effective and often the more expensive forms of birth control – and fewer women needed to rely on state- and locally funded health care facilities to obtain care. As a result of the ease and efficacy of the contraceptive care, health outcomes improved and unintended pregnancies, particularly those supported by state Medicaid programs, have dropped. 

When a woman gets contraception through her employer’s health plan, the process is relatively simple. She has choices as to her provider, speaks with her doctor at her regular women’s health exam, and either gets a prescription or sets an appointment for an IUD insertion. All of this occurs without costs.

If the broad exemptions to the contraceptive mandate go forward, that process will look quite different for thousands of women. She would have to find an alternative provider that is convenient and takes patients without coverage, get an appointment with that new provider in a timely manner, and pay any cost-sharing for the care she receives, which could be in the hundreds of dollars. These two routes to getting care are not equivalents, even in more favorable public health and fiscal environments, and the alternative pathway is reliant on government financial support that has disappeared.

In 2019, another Trump administration policy made it much harder to close the coverage gaps. The federal government tore up the fabric of the reproductive health landscape by adding new requirements to the Title X program. As a result of the new gag rule, which severely restricts any referral for abortions, low-cost reproductive health care has been reduced by 50% in several states.

Now that our healthcare system is overwhelmed by COVID-19 patients, the barriers to routine care, including contraceptive care, aregrowing by the day. Across the United States, health centers have decreased hours, denied walk-ins, limited well visits, and switched to telehealth – remote medical care – for some approved appointments. Not all forms of contraceptives are accessible this way. Indeed, even for clinics that continue to offer in-person appointments, some have largely ceased performing preventive invasive procedures in efforts to preserve personal protective equipment. Some of these changes could restrict access to some of the most effective forms of contraception such as IUDs.

Over the long run, fiscal strain on state and local governments will cause further limitations on access. The coronavirus pandemic is likely to cause massive budget shortfalls for state and local governments, given the exponential increases in health costs and the significant drop in tax revenues. Local community health clinics funded and operated by state and local governments will be no exception to the anticipated cuts. To put it plainly, state and local governments cannot afford to expend additional resources filling gaps in private coverage unnecessarily created by the federal government.

Every aspect of our lives has been disrupted by the pandemic. Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Jonathan Miller and LiJia Gong are Legal Director and Counsel, respectively, for Public Rights Project, a national nonprofit working with state and local governments to enhance rights enforcement in support of vulnerable populations.









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