Commentary Law and Policy

Hold On to Your Birth Control! ACLU Forecasts Big Year Ahead for Reproductive Rights

Erin Matson

Don’t expect legislators opposed to reproductive rights to tread lightly in 2013 just because voters made it clear extreme approaches to health care aren't popular, warned the American Civil Liberties Union in a media conference call Tuesday.

Don’t expect legislators opposed to reproductive rights to tread lightly in 2013 just because voters made it clear extreme approaches to health care aren’t popular, warned the American Civil Liberties Union in a media conference call Tuesday.

The most intense focus of activity is expected to remain at the state level. During the last two years, slightly more than 35 state legislatures played host to major abortion battles. While the scope of anti-abortion rights state-level efforts are expected to remain about the same, “That doesn’t mean we’ll see as many will pass as the last two years,” said Elissa Berger, a state advocacy and policy counsel for the ACLU Reproductive Freedom Project.

Across state lines, the group expects legislators opposed to reproductive rights to focus on six major areas: restricting the availability of medication abortion; banning abortion as early as 20 weeks; requiring ultrasounds and other forms of medically unnecessary care; banning insurance coverage for abortion, particularly in new health exchanges; using the imprimatur of religious freedom to ban access to health care within secular environments; and continuing to implement onerous regulations of women’s health clinics, sometimes referred to as TRAP laws.

At the federal level, another year of intense debate is expected to surround the new contraceptive coverage benefit under the Affordable Care Act. The benefit mandates insurance companies provide no-copay contraception along with other forms of preventive care to beneficiaries of health insurance plans provided through primarily secular institutions, including non-profit colleges and hospitals with a religious affiliation. 

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In 2012, the United States Conference of Catholic Bishops had led opposition to the contraceptive benefit, even after the Department of Health and Human Services (HHS) announced a compromise that would have private, third-party insurance companies completely subsidize the cost of providing the benefit to individuals. 

A final HHS rule is expected in August that continues to provide that Catholic and other religious-affiliated institutions need not pay for contraceptives that may be used by employees, students and other beneficiaries. “We can expect them [opponents to contraception] to respond with fireworks regardless of the process,” said Sarah Lipton-Lubet, a federal policy counsel at the ACLU Washington Legislative Office.

To date, 47 lawsuits have been filed in opposition to the contraceptive benefit. Most of them have been filed by non-profit institutions and as the final rule for non-profit organizations has not yet been adopted, many of those cases have been dismissed or suspended. 

Fifteen such cases concern private businesses, including a lawsuit filed by retailer Hobby Lobby. ACLU has filed briefs in most of these instances, arguing that providing a benefit package that includes contraceptive coverage paid for by insurance is no different than providing a salary an employee may use to buy contraception or other things an employer might disagree with.

Ultimately, the fate of the birth control benefit will be decided in the Supreme Court, predicted Jennifer Dalven, director of the ACLU Reproductive Freedom Project. She also highlighted pending court activity on 20-week abortion bans in Arizona and Georgia, as well as an ACLU lawsuit against HHS for knowingly distributing human trafficking relief funds to the United States Conference of Catholic Bishops, which refuses to provide information or referrals to abortion and contraception to victims in its care.

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