Thousands Protest Chilean Court Decision Limiting EC Access

Angela Castellanos

On April 4, the Constitutional Court of Chile banned the free distribution of emergency contraception. The reason: the Court claims this method is "abortive," despite unequivocal World Health Organization information to the contrary.

Editor's Note: With this post we welcome Angela Castellanos, a journalist based in Bogota, to Rewire. Angela will join our Global Perspectives team reporting on reproductive and sexual health and rights issues internationally.

It is hard to imagine a country banning contraceptive methods authorized by the World Health Organization, now in 2008. Believe it or not, that is what is happening in Chile, a country which once was known as one of the Latin American pioneers in contraception policies, and now is rolling the clock back nearly 40 years.

On April 4, the Constitutional Court of Chile banned the free distribution of emergency contraception (EC) in the public health system. The reason: the Court claims that this method is "abortive" and therefore it is against the Constitution, which states the right to life. The argument is based on the presence of the hormone levonorgestrel, contained in various other contraception methods (i.e. pills and cooper intrauterine devices) — which could also be declared forbidden.

The World Health Organization has unequivocally stated that "Levonorgestrel emergency contraceptive pills have been shown to prevent ovulation and they did not have any detectable effect on the endometrium (uterine lining) or progesterone levels when given after ovulation. Emergency contraception pills are not effective once the process of implantation has begun, and will not cause abortion."

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Once again, men determined the rights of women. In fact, nine men of the Constitutional Court snatched away the reproductive rights of nearly five million women of childbearing age. This decision comes in addition to the one that forbade therapeutic abortion, adopted at the end of Augusto Pinochet's dictatorship.

Its consequence are already clear: an increase in clandestine abortions and likely the maternal mortality rate, as many women cannot afford a safe surgical procedure to terminate their pregnancies. Public sector health care staff held protests against the ruling, claiming that the ruling is contrary to women's access to health care.

Women's groups, unions, NGOs, health institutions, and human rights organizations organized demonstrations in the most important Chilean cities, and signed a public declaration rejecting the ruling and appealing the State to observe the reproductive rights.

Informed women think that they will replace EC by a bunch of ordinary contraceptive pills that contain levonorgestrel. However, this alternative does not replace the public recognition of women's rights, and the role the government can play in reducing instances of abortion and teen motherhood.

Actually, abortion and teenage pregnancy were some of the worries at the heart of the reproductive health policy promoted by the current government, led by the female president Michelle Bachelet, which offered low-income women access to EC by reforming the National Norms on Fertility Regulation. According to the new regulations announced in September 2006, the public health services were authorized to prescribe and provide — free of charge — traditional contraception methods as well as EC to all women from 14 years old, without their parents' consent.

Soon after, the detractors objected to the reform, so the President declared it a Supreme Act. The legal debate was driven by 36 members of the Low Chamber of Parliament from the rightist Alianza por Chile, with the support of the Catholic authorities and "Pro Vida" (For life), a group against abortion.

It seems very relevant that legal allegations came up when EC became freely distributed within the public health system, while no one protested between 2001 and 2006 when it was sold in pharmacies. For the government and progressive sectors of civil society, this is a "discriminatory" and "non equitable" decision, because it barred access for young and poor women. According to the Fifth National Survey of Youth, in Chile more than 40% of women from the low income levels became mothers between 15 and 24 years old, compared to only 14% of the middle and high levels.

The controversy has involved not only the government, but the whole society. The Catholic Church insists on defending the Constitutional Court decision and call for forbidding EC in private pharmacies. In fact, the Catholic Church put pressure on the Court during the legal debate. "During the allegations, in November 2007, the Monsignor of Santiago was seated in the first row, this is an example of the kind of pressures from ideological forces," stated Lidia Casas, in an interview with this correspondent. Casas, a female lawyer, represented the members of Parliament supporting the free distribution of EC in the public health system.

An economic interest could explain the motivations of the members of Parliament who raised the legal debate. In fact, their political forces represent the powerful economic groups, which are leading the country through an open market model. Some NGOs working for Chilean women, such as DOMOS, raise the question: Is EC a threat for economic power, which needs to ensure a cheap labor force to replace the current generation of workers? This question makes sense, because the active population in Chile and the fertility rate are quite low. In addition, such economic interest could explain the apparent contradiction between the promotion of a modern country and the adoption of regressive measures.

Roundups Politics

Campaign Week in Review: Trump Weighs in on Supreme Court Decision, After Pressure From Anti-Choice Leaders

Ally Boguhn

The presumptive Republican nominee’s confirmation that he opposed the decision in Whole Woman’s Health v. Hellerstedt came after several days of silence from Trump on the matter—much to the lamentation of anti-choice advocates.

Donald Trump commented on the U.S. Supreme Court’s abortion decision this week—but only after days of pressure from anti-choice advocates—and Hillary Clinton wrote an op-ed explaining how one state’s then-pending decision on whether to fund Planned Parenthood illustrates the high stakes of the election for reproductive rights and health.

Following Anti-Choice Pressure, Trump Weighs in on Supreme Court’s Abortion Decision

Trump finally broke his silence Thursday about the Supreme Court’s decision earlier this week, which struck down two provisions of Texas’ HB 2 in Whole Woman’s Health v. Hellerstedt.

“Now if we had Scalia was living, or if Scalia was replaced by me, you wouldn’t have had that,” Trump claimed of the Court’s decision, evidently not realizing that the Monday ruling was 5 to 3 and one vote would not have made a numerical difference, during an appearance on conservative radio program The Mike Gallagher Show. “It would have been the opposite.” 

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“So just to confirm, under a President Donald Trump-appointed Supreme Court, you wouldn’t see a majority ruling like the one we had with the Texas abortion law this week?” asked host Mike Gallagher.

“No…you wouldn’t see that,” replied Trump, who also noted that the case demonstrated the important role the next president will play in steering the direction of the Court through judicial nominations.

The presumptive Republican nominee’s confirmation that he opposed the decision in Whole Woman’s Health came after several days of silence from Trump on the matter—prompting much lamentation from anti-choice advocates. Despite having promised to nominate anti-choice Supreme Court justices and pass anti-abortion restrictions if elected during a meeting with more than 1,000 faith and anti-choice leaders in New York City last week, Trump made waves among those who oppose abortion when he did not immediately comment on the Court’s Monday decision.

“I think [Trump’s silence] gives all pro-life leaders pause,” said the president of the anti-choice conservative organization The Family Leader, Bob Vander Plaats, prior to Trump’s comments Thursday, according to the Daily Beast. Vander Plaats, who attended last week’s meeting with Trump, went on suggest that Trump’s hesitation to weigh in on the matter “gives all people that are looking for life as their issue, who are looking to support a presidential candidate—it gives them an unnecessary pause. There shouldn’t have to be a pause here.”

“This is the biggest abortion decision that has come down in years and Hillary Clinton was quick to comment—was all over Twitter—and yet we heard crickets from Donald Trump,” Penny Young Nance, president of Concerned Women for America, said in a Tuesday statement to the Daily Beast.

Kristan Hawkins, president of Students for Life of America, expressed similar dismay on Wednesday that Trump hadn’t addressed the Court’s ruling. “So where was Mr. Trump, the candidate the pro-life movement is depending upon, when this blow hit?” wrote Hawkins, in an opinion piece for the Washington Post. “He was on Twitter, making fun of Elizabeth Warren and lamenting how CNN has gone negative on him. That’s it. Nothing else.”

“Right now in the pro-life movement people are wondering if Mr. Trump’s staff is uninformed or frankly, if he just doesn’t care about the topic of life,” added Hawkins. “Was that meeting last week just a farce, just another one of his shows?”

Anti-choice leaders, however, were not the only ones to criticize Trump’s response to the ruling. After Trump broke his silence, reproductive rights leaders were quick to condemn the Republican’s comments.

“Donald Trump has been clear from the beginning—he wants to overturn Roe v. Wade, and said he believes a woman should be ‘punished’ if she has an abortion,” said Dawn Laguens, executive vice president of Planned Parenthood Action Fund, which has already endorsed Clinton for the presidency, in a statement on Trump’s comments. 

“Trump’s remarks today should send a shiver down the spine of anyone who believes women should have access to safe, legal abortion. Electing Trump means he will fight to take away the very rights the Supreme Court just ruled this week are constitutional and necessary health care,” continued Laguens.

In contrast to Trump’s delayed reaction, presumptive Democratic nominee Clinton tweeted within minutes of the landmark abortion rights decision, “This fight isn’t over: The next president has to protect women’s health. Women won’t be ‘punished’ for exercising their basic rights.”

Clinton Pens Op-Ed Defending Planned Parenthood in New Hampshire

Clinton penned an op-ed for the Concord Monitor Wednesday explaining that New Hampshire’s pending vote on Planned Parenthood funding highlighted “what’s at stake this election.”

“For half a century, Planned Parenthood has been there for people in New Hampshire, no matter what. Every year, it provides care to almost 13,000 people who need access to services like counseling, contraception, and family planning,” wrote Clinton. “Many of these patients cannot afford to go anywhere else. Others choose the organization because it’s the provider they know and trust.”

The former secretary of state went on to contend that New Hampshire’s Executive Council’s discussion of denying funds to the organization was more than “just playing politics—they’re playing with their constituents’ health and well-being.” The council voted later that day to restore Planned Parenthood’s contract.

Praising the Supreme Court’s Monday decision in Whole Woman’s Health, Clinton cautioned in the piece that although it was a “critical victory,” there is still “work to do as long as obstacles” remained to reproductive health-care access.

Vowing to “make sure that a woman’s right to make her own health decisions remains as permanent as all of the other values we hold dear” if elected, Clinton promised to work to protect Planned Parenthood, safeguard legal abortion, and support comprehensive and inclusive sexual education programs.

Reiterating her opposition to the Hyde Amendment, which bans most federal funding for abortion care, Clinton wrote that she would “fight laws on the books” like it that “make it harder for low-income women to get the care they deserve.”

Clinton’s campaign noted the candidate’s support for repealing Hyde while answering a 2008 questionnaire provided by Rewire. During the 2016 election season, the federal ban on abortion funding became a more visible issue, and Clinton noted in a January forum that the ban “is just hard to justify” given that restrictions such as Hyde inhibit many low-income and rural women from accessing care.

What Else We’re Reading

Politico Magazine’s Bill Scher highlighted some of the potential problems Clinton could face should she choose former Virginia governor Tim Kaine as her vice presidential pickincluding his beliefs about abortion.

Foster Friess, a GOP mega-donor who once notoriously said that contraception is “inexpensive … you know, back in my days, they used Bayer aspirin for contraception. The gals put it between their knees, and it wasn’t that costly,” is throwing his support behind Trump, comparing the presumptive Republican nominee to biblical figures.

Clinton dropped by the Toast on the publication’s last day, urging readers to follow the site’s example and “look forward and consider how you might make your voice heard in whatever arenas matter most to you.”

Irin Carmon joined the New Republic’s “Primary Concerns” podcast this week to discuss the implications of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt on the election.

According to analysis from the Wall Street Journal, the popularity of the Libertarian Party in this year’s election could affect the presidential race, and the most likely outcome is “upsetting a close race—most likely Florida, where the margin of victory is traditionally narrow.”

The Center for Responsive Politics’ Alec Goodwin gave an autopsy of Jeb Bush’s massive Right to Rise super PAC.

Katie McGinty (D), who is running against incumbent Sen. Pat Toomey (R) in Pennsylvania, wrote an op-ed this week for the Philly Voice calling to “fight efforts in Pa. to restrict women’s access to health care.”

The Iowa Supreme Court ruled against an attempt to restore voting rights to more than 20,000 residents affected by the state’s law disenfranchising those who previously served time for felonies, ThinkProgress reports.

An organization in Louisiana filed a lawsuit against the state on behalf of the almost 70,000 people there who have previously served time for felonies and are now on probation or parole, alleging that they are being “wrongfully excluded from registering to vote and voting.”

Commentary Law and Policy

Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling

Bridgette Dunlap

Yes, the Zubik v. Burwell case challenged the Affordable Care Act's contraceptive coverage mandate. But that shouldn't stop you from getting your reproductive health needs met—without a co-payment.

In May, the Supreme Court issued a sort of non-decision in Zubik v. Burwell, the consolidated case challenging the Affordable Care Act’s mandate that employers provide contraceptive coverage. The ruling leaves some very important legal questions unanswered, but it is imperative that criticism of the Court for “punting” or leaving women in “limbo” not obscure the practical reality: that the vast majority of people with insurance are currently entitled to contraception without a co-payment—that includes people, for the most part, who work for religiously affiliated organizations.

Two years ago, hyperbole in response to the Court’s decision in Burwell v. Hobby Lobby—that, for example, the Court had ruled your boss can block your birth control—led too many people to believe the contraceptive coverage requirement was struck down. It wasn’t. The Zubik decision provides a good opportunity to make sure that is understood.

If people think they don’t have birth control coverage, they won’t use it. And if they don’t know what coverage is legally required, they won’t know when their plans are not in compliance with the law and overcharging them for contraceptives or other covered services, perhaps unintentionally. The point of the contraceptive coverage rule is to make it as easy as possible to access contraceptives—studies show seemingly small obstacles prevent consistent use of the most effective contraceptives. Eliminating financial barriers isn’t enough if informational ones undermine the goal.

The most important thing to know is that most health plans are currently required to cover reproductive health services without a co-payment, including:

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  • One version of every kind of FDA-approved contraception—that is, only the generic or the brand-name version of the contraceptive could be covered, but at least one must be. So you shouldn’t be paying a co-payment whether you use the pill, the patch, the shot, or want long-acting reversible contraception (LARC) like an IUD, which is more expensive, but most effective.
  • Screening for HIV and high-risk strains of HPV
  • An annual well-woman visit
  • Breastfeeding counseling and supplies like pumps

There are exceptions, but most plans should be covering these services without a co-payment. Don’t assume that because you work for Hobby Lobby or Notre Dame—or any other religiously affiliated employer—that you don’t currently have coverage.

The original contraceptive coverage rule had an “exemption” for church-type groups (on the somewhat dubious theory that such groups primarily employ individuals who would share their employers’ objection to contraception). When other kinds of organizations, which had religious affiliations but didn’t primarily employ individuals of that same religion, objected to providing contraceptive coverage, the Obama administration came up with a plan to accommodate them while still making sure women get contraceptive coverage.

This “accommodation” is a workaround that transfers the responsibility to provide contraceptive coverage from the employer to the insurance company. After the employer fills out a form noting it objects to providing contraception, the insurance company must reach out to the employee and provide separate coverage that the objecting organization doesn’t pay for or arrange.

This accommodation was originally available only to nonprofit organizations. But dozens of for-profits, like Hobby Lobby, sued under the Religious Freedom Restoration Act (RFRA)—arguing that their owners were religious people whose beliefs were also burdened by the company having to provide coverage.

The Hobby Lobby decision did not say your boss’s religious belief trumps your right to a quality health plan. What the Court did was point to the existence of the accommodation for nonprofits as proof that the government could achieve its goals of ensuring coverage of contraception through a workaround already in place to give greater protection to objectors. Basically, the Court told the government to give the for-profits the same treatment as the nonprofits.

The Hobby Lobby decision states explicitly that the effect of this on women should be “precisely zero.” The Obama administration subsequently amended the contraceptive regulations, making coverage available to employees of companies like Hobby Lobby available through the accommodation. Hobby Lobby added some headaches for administrators and patients, but it did not eliminate the contraceptive coverage rule.

Next, however, the nonprofits went on to argue to the Supreme Court and the public that the accommodation the Court had seemed to bless in Hobby Lobby also violated RFRA—because having to fill out a form, which notified the government that they objected to contraceptive coverage and identifying their insurers, would substantially burden their religious beliefs.

Following oral arguments in Zubik, the eight-member Supreme Court issued a highly unusual order: It asked the parties to respond to its proposed modification of the accommodation, in which the government would not require objecting nonprofits to self-certify that they oppose contraception nor to identify their insurers. The government would take an organization’s decision to contract for a health plan that does not cover contraception to be notice of a religious objection and go ahead with requiring the insurer to provide it instead.

The petitioners’ response to the Court’s proposed solution was “Yes, but…” They said the Court’s plan would be fine so long as the employee had to opt into the coverage, use a separate insurance card, and jump through various other hoops—defeating the goal of providing “seamless” contraceptive coverage through the accommodation.

When the Court issued its decision in Zubik, it ignored the “but.” It characterized the parties as being in agreement and sent the cases back to the lower courts to work out the compromise.

The Court told the government it could consider itself on notice of the petitioners’ objections and move forward with getting separate contraceptive coverage to the petitioners’ employees, through the accommodation process, but without the self-certification form. How the government will change the accommodation process, and whether it will satisfy the petitioners, are open questions. The case could end up back at the Supreme Court if the petitioners won’t compromise and one of the lower courts rules for them again. But for prospective patients, the main takeaway is that the Court ruled the government can move forward now with requiring petitioners’ insurers to provide the coverage that the petitioners won’t.

So—if your plan isn’t grandfathered, and you don’t work for a church or an organization that has sued the government, your insurance should be covering birth control without a co-payment. (If your plan is grandfathered and your employer makes a change to that plan, then those formerly grandfathered plans would be subject to the same contraceptive coverage requirements.) If you do work for one of the nonprofit petitioners, the government should be making contraceptive coverage available even before the litigation is resolved. And in some cases, employees of the petitioners already have coverage. Notre Dame, for example, initially accepted the accommodation before being pressured by off-campus contraception opponents to sue, so its insurer is currently providing Notre Dame students and employees coverage.

Don’t despair about the Supreme Court’s gutting access to contraception. Assume that you have coverage. The National Women’s Law Center has great resources here for finding out if your plan is required to cover contraception and how to address it with your insurance plan if it isn’t in compliance, and a hotline to call if you need help. The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.