03.11.16

American Women's Reproductive Health at Stake in Whole Women's Health and Zubik

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Image courtesy of Time


Since the 1960s, the U.S. Supreme Court has played a major role in establishing, expanding and defending American women’s reproductive rights. From Griswold v. Connecticut to Gonzales v. Carhart, the Court developed a line of jurisprudence that protects women’s rights to contraception, to abortion, and to bear a child.
This term, the Court is considering 2 cases that have the potential to dramatically curtail women’s ability to exercise their reproductive rights, particularly their rights to access abortion and to access contraception. In honor of International Women’s Day, which took place earlier this week, let’s consider what exactly is at stake in Whole Women’s Health v. Hellerstedt and Zubik v. Burwell.

Whole Women’s Health v. Hellerstedt
In 2013, politicians in Texas passed a law known as HB2. Under the pretext of protecting women’s health and safety, HB2 buries clinics under medically unnecessary regulations so burdensome as to make it vastly more difficult, if not impossible, to obtain safe and legal abortions. The regulations would require doctors who perform abortions to obtain admitting privileges at local hospitals and health care facilities offering abortion services to meet the building specifications of ambulatory surgical centers. Together, these requirements would shutter all but 9 or 10 abortion clinics in a state with 5.4 million women of reproductive age, and leave more than 500 miles between San Antonio and the New Mexico border without a single clinic.
The Court, which heard oral arguments in early March, will have to decide whether these restrictions constitute an “undue burden” on a woman’s right to access abortion services. With the death of Justice Antonin Scalia, a 4-4 split decision is possible, which would mean that the 5th Circuit’s decision to fully uphold HB2 remains in effect. Under these circumstances, Texas – the second-most populous state in the nation – would be left with at most 10 abortion providers, forcing women to travel hundreds of miles or turn to drastic or illegal options.
Zubik v. Burwell
The Affordable Care Act (ACA) requires most private health insurance plans to provide coverage for a range of preventive services, including prescription contraceptives for women. The government created an “accommodation” or opt-out procedure for religiously-affiliated nonprofits, relieving them of any obligation to provide contraceptive care coverage if they submit a form to the government noting their religious objection. The contraceptive care coverage is then paid for and administered by a third party. Several nonprofit organizations have filed lawsuits claiming that including coverage for contraceptives or opting for an accommodation from the federal government violates their religious beliefs.
In Zubik v. Burwell, the Court will decide whether the notice requirement to elect an accommodation to the contraceptive coverage requirement “substantially burdens” the nonprofits’ religious exercise. It will consider whether these nonprofits are unjustly burdened under the Religious Freedom Restoration Act (RFRA), engaging in the following analysis:
Image courtesy of Kaiser Family Foundation

Image courtesy of Kaiser Family Foundation


If the Court decides that the accommodation violates the RFRA, many workers and dependents may not receive contraceptive coverage because their employers will be exempt. According to the Kaiser Family Foundation, 3% of all nonprofits offering health benefits (with 10 or more workers) and 10% of nonprofits with 1,000 or more workers have given notice for an accommodation.
Both cases highlight the fact that the right to access an abortion and the right to access contraception are meaningless so long as laws that hinder women’s ability to exercise those rights are in effect.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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