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What’s next after the Supreme Court’s birth control ruling?

Last week’s decision won’t end the fight over contraception coverage.

A groundskeeper cuts the grass in front of the U.S. Supreme Court building on July 8. (Chip Somodevilla/Getty Images)
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Last week, the Supreme Court in Little Sisters of the Poor v. Pennsylvania upheld Trump administration rules that allow private employers with moral or religious objections to deny women contraceptive coverage under the Affordable Care Act (ACA). The Court’s decision is the latest move in a protracted national debate over how to balance women’s health and access to contraception against demands of religious liberty.

Based on our recent book, “Politics of the Pill: Gender, Framing and Policymaking in the Battle over Birth Control,” here are three takeaways from the court’s decision.

1. The decision won’t end the fight over contraception coverage

The ACA requires health plans to cover preventive health-care services — with no co-payment or deductible for the insured. As we illustrate in the book, birth control was not a high-profile issue when Congress debated the ACA. But the matter proved explosive during the ACA implementation when the Obama administration announced, based on recommendations from the Institute of Medicine, that contraception approved by the Food and Drug Administration would be included under preventive care.

The birth control mandate triggered heated congressional committee hearings. In response, the Obama administration modified the regulations to allow additional accommodations for religious institutions. Nevertheless, the regulations were challenged in hundreds of lower court cases and debated at length during the 2012 presidential election. In 2014, the Supreme Court held in Burwell v. Hobby Lobby that a “closely held” for-profit corporation that had religious objections to contraceptives could opt out of the mandate.

In 2017, the Trump administration pushed to further extend opt-out options to private employers on religious or moral grounds and to eliminate the Obama-era workaround that ensured employees working for exempt employers could be covered directly by insurers. At issue in Little Sisters of the Poor was this exemption for private-sector employers.

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Did the Trump administration fail to comply with federal laws governing administrative agency rulemaking when issuing this exemption? Did exempting employers from contraceptive coverage violate the statutory directives of the ACA? In a 7-to-2 decision, the Supreme Court answered “no” to both of these questions, ruling that the Trump administration met the procedural requirements outlined in the 1946 Administrative Procedure Act when enacting the exemptions and that the content of the exemptions was consistent with the ACA.

Some on the right, such as House Minority Leader Kevin McCarthy (R-Calif.), framed the court’s decision as a triumphant and permanent win for religious freedom. But the fight is far from over. For instance, the Pennsylvania attorney general suggested possible further litigation over whether the Trump administration’s exemptions should be invalidated as “arbitrary and capricious” under other provisions of the Administrative Procedure Act.

What’s more, the next president could once again change the exemptions. Democratic presidential candidate Joe Biden vowed that if elected, his administration would overturn Trump-era rules, and would again limit exemptions to the contraceptive mandate, offering them to only houses of worship and nonprofit organizations with religious missions.

2. Gender helps to frame debates over contraception

In our research, we studied legislative deliberations, statutory wording, regulations, media coverage, Supreme Court briefs arguments and rulings, and public opinion polls to explore how legislators, judges, journalists and members of the public think about and act on the contraceptive mandate. We considered numerous angles from which the issue can be viewed, including religious liberty, women’s health, reproductive rights and the economy. Gender matters a lot in shaping how someone perceives the issue. Women more commonly view the issue as a matter of women’s health and reproductive rights.

We see these different perspectives reflected in the Little Sisters case. For example, Justice Ruth Bader Ginsburg’s dissent explicitly highlighted women’s health and reproductive rights, claiming that the majority’s decision “leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and absent another available source of funding, to pay for contraceptive services out of their own pockets.”

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By contrast, Justice Clarence Thomas’s nearly 8,000-word majority opinion mentioned “women” only seven times despite the fact that the statute explicitly refers to “women.” Tellingly, one of those references is that the Little Sisters of the Poor is a group of religious women; three respond directly to Ginsburg’s dissent. None of the opinions mentions access for transmen or non-binary employees.

Of course, Ginsburg and Thomas come from different ideological perspectives, which also influence their decisions. But when we researched a wide range of public figures’ opinions — including judges, legislators and advocates — we found similar divisions by gender, even after taking into account where that person stood ideologically.

3. The public will be divided on this decision

In the late 1990s and early 2000s, large majorities of the American public strongly supported contraceptive mandates, according to polls. That didn’t last. After the Obama administration announced in August 2011 that employers’ insurance plans would be required to cover certain forms of birth control under the ACA, many social conservatives and religious organizations (particularly the U.S. Conference of Catholic Bishops) began arguing that such a requirement violated religious freedom.

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Since then, the way pollsters word questions about the mandate influences survey responses — making it hard to have a clear idea of what the public believes. For instance, a SCOTUSpoll released this month found that 53 percent of Americans agreed that employers “should not be forced to cover contraceptives.” But an October 2019 Marquette poll found that nearly two-thirds of Americans opposed allowing a company to “choose to not pay for coverage of prescription birth control in their workers’ health plans if the company’s owner has religious objections.”

What’s more, how public figures frame court decisions helps shape public opinion. In experiments detailed in our book, we found that a “gendered” way of discussing the news — one that emphasizes women’s health, reproductive rights and/or sexual morality — increased support for birth control coverage, while discussions about “religious freedom” reduced it.

Will McCarthy’s tweet or Ginsburg’s dissent dominate future discussion of the court’s decision? The answer will affect how the public thinks about birth control access.

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Kevin Wallsten is a professor in the Department of Political Science at California State University at Long Beach.

Rachel VanSickle-Ward is a professor of political studies at Pitzer College in Claremont, Calif. She and Wallsten are co-authors of “Politics of the Pill: Gender, Framing and Policymaking in the Battle over Birth Control (Oxford University Press, 2019).

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