By Maya Manian*
In June Medical Services v. Russo, the U.S. Supreme Court struck down a Louisiana law that would have shuttered all but one abortion clinic in the state. Unfortunately, that decision came at a steep cost: Chief Justice Roberts wrote a separate opinion in June Medical weakening the legal standard for protecting abortion access and setting forth a road map for how states can attack abortion rights going forward. Furthermore, in Little Sisters of the Poor v. Pennsylvania, Roberts joined the Court’s four other conservatives in upholding the Trump Administration’s excessively broad exemptions to the ACA’s contraceptive coverage requirement.
Together, June Medical and Little Sisters of the Poor represent the dawning of an unprecedented attack on reproductive rights and justice. Chief Justice Roberts put forward a clear path to eviscerate abortion rights and to permit attacks on access to contraception without overtly overturning precedent, rendering reproductive health care available in theory but inaccessible in reality for low-income people and people of color.
June Medical Services v. Russo: Upholding While Undermining Precedent
In a striking parallel to the initial constitutional challenge to the Affordable Care Act (ACA), Roberts’s separate opinion in June Medical appears to adopt a strategy of winning by losing. Roberts voted with the liberal bloc to protect the legitimacy of the Supreme Court while still advancing a doctrinal agenda that will dismantle reproductive rights. The 5–4 decision in June Medical invalidated a Louisiana law requiring abortion providers to obtain admitting privileges at local hospitals. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down an almost identical Texas law because the Court recognized that admitting privileges laws serve no health benefits yet impose substantial obstacles to accessing abortion care. Even though he dissented in Whole Woman’s Health, Chief Justice Roberts joined the four liberal Justices in June Medical to overturn Louisiana’s medically unnecessary admitting privileges mandate.
Roberts’s separate opinion concurring in the judgment made clear that he continued to disagree with the majority opinion in Whole Woman’s Health. In that case, Justice Kennedy provided the fifth vote to bolster Planned Parenthood v. Casey’s undue burden standard. Whole Woman’s Health held that courts must balance the actual benefits of an abortion restriction against its burdens in order to determine whether the law imposes a burden that is undue.
Roberts rejected Whole Woman’s Health’s balancing test for protecting abortion rights. Instead, he would ask only whether the burdens imposed by an abortion regulation amount to a substantial obstacle to accessing abortion care. The Chief Justice drops any requirement that courts compare the proven benefits of an abortion law with its burdens. Ironically, Roberts asserted that the principle of stare decisis compelled him to adhere to Whole Woman’s Health’s holding with regard to admitting privileges laws, while at the same time he undermined the legal standard set forth by that very precedent. As Justice Kavanaugh pointed out in his separate dissent, “[t]oday, five Members of the Court reject the Whole Woman’s Health cost-benefit standard.”
As the new swing vote on abortion cases, Roberts’s opinion indicates that going forward the Supreme Court will likely uphold all kinds of onerous abortion restrictions. As legal historian Mary Ziegler documents, over the last several decades, anti-abortion forces have chipped away at access to abortion care through a wide variety of incrementalist measures, including laws imposing targeted regulation of abortion providers (“TRAP” laws) and through violence directed at providers and clinics. Currently, six states have only one abortion provider left and low-income women cannot obtain health care coverage for abortion care in most of the country due to the Hyde Amendment. Under Roberts’s watered down interpretation of the undue burden test, federal courts could uphold numerous burdensome regulations.
In fact, shortly after deciding June Medical, the Supreme Court ordered the Court of Appeals for the Seventh Circuit to reconsider two abortion rights victories in light of the diminished legal standard announced by Roberts. The federal appellate court had struck down Indiana laws requiring an eighteen hour waiting period after a government mandated ultrasound and forcing teenagers to notify parents of their decision to seek abortion care after they receive an order from a court bypassing parental involvement. Those victories for abortion rights now appear to be in jeopardy. Other restrictions such as limits on medication abortion and bans on telehealth for abortion care—especially important means of access during the coronavirus pandemic—could also be upheld. As David Cohen and Carole Joffe poignantly document, abortion patients already face an obstacle course when seeking care. Roberts’s weakened legal standard for abortion rights paves the way for states to impose so many obstacles that only the affluent will be able to readily access the full spectrum of reproductive health care—replicating conditions that existed prior to Roe v. Wade.
Little Sisters of the Poor v. Pennsylvania: Eviscerating Access to Contraception
In addition to issuing a weaker standard for reviewing abortion restrictions, the Supreme Court allowed the Trump Administration to undermine access to contraception. In Little Sisters of the Poor v. Pennsylvania, the Court decided that the Trump Administration could gut the Affordable Care Act’s (ACA) requirement that health insurance plans cover women’s essential preventive services, which includes contraceptive care.
Little Sisters of the Poor is the culmination of decade-long litigation over the ACA’s promise of equitable access to essential health care for all Americans. Congress passed the Women’s Health Amendment as part of the ACA to decrease the disparity in health care costs experienced by women.
At its core, the Women’s Health Amendment is an anti-discrimination law. In other words, Congress intended to ensure women have the same health insurance coverage for their essential health care as men. As part of this mandate for equality, all FDA-approved prescription contraceptives must be covered without a copay in ACA-compliant health insurance plans.
Contrary to conservative claims, the coverage requirement is not about forcing nuns to pay for contraception. In fact, Obama-era rules ensured that religious organizations could claim an exemption from birth control coverage, while providing for an alternative mechanism for women to access contraceptives. The Obama Administration offered an accommodation to religious non-profits by creating an opt-out process. Religiously motivated organizations could file a one-page opt-out form, and the government would then ensure birth control coverage through other means. Yet, organizations like the Little Sisters of the Poor objected to the mere filing of a one-page form as too burdensome. Businesses and universities also challenged the ACA’s equal coverage mandate by seeking a complete exemption from coverage for employees and students.
In 2017, the Department of Health and Human Services issued two new regulations allowing almost any employer, including large corporations and colleges, to refuse to include contraceptives in their health insurance plans based on religious or even “moral” objections. Strikingly, the Trump Administration’s regulations contain no alternative mechanism to ensure women’s access to birth control coverage. Those regulations had been enjoined by a lower federal court, but the Supreme Court decision in Little Sisters of the Poor allows the Trump rule to go into effect—leaving tens of thousands of women without insurance coverage for contraception.
The Court held that the executive branch has the statutory authority to carve out contraception from the ACA’s equitable health care coverage mandate. The majority opinion—in which Roberts joined his fellow conservative Justices—did not directly address claims about religious freedom. Instead, the majority focused on technical issues of statutory interpretation and administrative procedure to conclude that the Trump Administration could issue extremely broad exemptions to contraception coverage despite effectively undoing women’s equal access to preventive care.
In yet another example of the Supreme Court favoring conservative religious claims over the right to equality under the law, Justice Alito wrote a separate opinion directly addressing assertions that religious freedom not only permits but in fact requires broad exceptions to the contraceptive coverage mandate. In an opinion joined by Justice Gorsuch, Alito asserted that the Religious Freedom Restoration Act mandates exemptions like those issued by the Trump Administration. Justice Alito relied heavily on a prior decision, Burwell v. Hobby Lobby Stores, in which five Republican-appointed Justices held that corporations are entitled to accommodations against the contraceptive coverage requirement. Notably, Justice Alito’s Little Sisters of the Poor opinion exclaims:
“The Court has held that there is a constitutional right to purchase and use contraceptives . . . [b]ut the Court has never held that there is a constitutional right to free contraceptives.”
Justice Alito’s statement ignores the constitutional right to equality—and that the crux of the Women’s Health Amendment ensures that women have equal access to essential health care. Furthermore, Alito’s statement elides that insurance coverage for contraception is not “free” but earned by women as part of their compensation for employment.
Notably, Chief Justice Roberts did not join Alito’s more radical opinion. Instead, Roberts’s strategy relied on more technical arguments to allow the Trump Administration to hollow out the ACA’s equity mandate. In both the June Medical and Little Sisters of the Poor decisions, Roberts’s approach lays down a path for opponents of reproductive justice to slowly eviscerate access to abortion and contraception.
Although news reports indicate that the decision was 7–2, the opinions behind those numbers tell a more complicated story. Justice Kagan wrote an opinion, joined by Justice Breyer, concurring in the judgment, emphasizing that she agreed only with the result but not the reasoning of the five conservative Justices. Kagan felt the statutory text compelled her to concede that the Trump Administration possessed the authority to issue exemptions to coverage of contraception.
Nevertheless, Justice Kagan’s opinion offered an alternative legal route to challenge the Trump Administration’s attack on contraceptive coverage. She noted that the lower federal court had not reached a decision on an additional legal ground for striking down the broad exemptions granted by the Trump Administration—namely, that the exemptions are “arbitrary and capricious.” The Administrative Procedure Act’s arbitrary and capricious standard demands that administrative decisions reflect reasoned decision-making and draw a rational connection between the problem identified and the chosen solution. Justice Kagan set forth a clearly-reasoned argument for why the Trump Administration’s unduly broad contraceptive carve-out could contravene the arbitrary and capricious legal standard. Thus, challengers could attempt to block implementation of Trump’s attack on birth control in the lower federal court based on Justice Kagan’s opinion.
Justice Ginsburg wrote a dissenting opinion, joined by Justice Sotomayor, articulating the devastating harms imposed by the Trump Administration’s far-reaching contraceptive coverage exemptions. The government’s own estimates showed that, at a minimum, between 70,500 to 126,400 women would lose birth control coverage under the Trump exemptions. Ginsburg emphasized that ready access to contraception both “safeguards women’s health and enables women to chart their own life’s course.” Furthermore, Ginsburg noted that the ACA has helped women in lower-income groups access health care more broadly and preventive services in particular. The Trump Administration’s exemptions impose significant burdens on those women, since they will now either struggle to find coverage for contraception elsewhere or be forced to pay out of pocket. The most effective methods of contraception are also the most expensive, and limiting health insurance coverage of these contraceptives disproportionately burdens poor women and women of color.
The Unequal Impacts of the Supreme Court’s Assault on Reproductive Rights
The ACA’s mandate for equity in health care through contraceptive coverage rests on medical experts’ conclusion that birth control is essential preventive care. Evidence (and common sense) tells us that supporting and expanding access to contraception reduces the rate of unintended pregnancy, which reduces the rate of abortion. Yet, not only did the Supreme Court undermine access to contraception, Chief Justice Roberts also cleared a path for restrictions on abortion care. By restricting access to both contraception and abortion, the Court has exposed what really animates these heated debates—a contest over who controls women’s decisions about sexuality and gender roles in a secular society.
Anti-abortion advocates lost the battle against abortion rights this time, but Chief Justice Roberts set forth a strategy for winning the war against reproductive rights. The Supreme Court’s dismantling of reproductive rights will not impact all people equally. As Seema Mohapatra explains, low-income people and people of color will disproportionately suffer as the Roberts Court rolls back strides towards reproductive justice.
*Maya Manian (J.D.) is a Visiting Professor at American University Washington College of Law.