President Trump’s Supreme Court nominee, Judge Brett M. Kavanaugh, poses a threat to the right to access birth control for women across the country, in particular low-income women and women of color who face higher barriers to access.
Access to contraception is essential to women’s health, economic security, autonomy and equality. Yet, working women who have a harder time accessing reproductive services and contraception are disproportionately Latina and African American because, among other reasons, they earn lower wages and are less likely to have health care coverage that covers out-of-pocket health care costs.
The Affordable Care Act has expanded coverage to millions of women and families. Under the ACA, most employers are required to cover women’s preventive health services, including birth control, at no cost. Thanks to the ACA, over 15 million women of color of reproductive age now have private insurance coverage for preventive services, including no-cost contraceptives.
This increased access is giving more women control over their lives including if, or when, to become pregnant. This in turn allows them to better plan their personal and professional lives.
As women, including women of color, enter the workforce at increased rates, continued affordable access to contraception is critical.
But Kavanaugh’s judicial record provides serious reasons to worry he would undo this progress if confirmed to the Supreme Court.
New regulations adopted by the Trump administration last year allow any employer (including large corporations) or university with a religious or moral objection to contraception to be exempt from providing birth control coverage for their employees, without providing any way to maintain seamless access to no-cost coverage.
Those exemptions have been opposed by states and advocates (including the Center for Reproductive Rights and the Lawyers’ Committee for Civil Rights Under Law), and have been temporarily blocked by two federal courts. These cases are currently on appeal and could soon head to the Supreme Court.
Kavanaugh’s decisions demonstrate he would be exceedingly receptive to the religious objections of employers and even willing to give the administration a pass on enforcing any version of the contraceptive coverage benefit.
In 2015, religiously-affiliated employers challenged the Obama administration’s accommodation for entities with religious objections. The employers argued that merely filing a two-page administrative form to opt out of providing contraception coverage to their employees was a substantial burden on their religious beliefs.
Kavanaugh agreed and in his dissent voted to strike down the Obama administration’s religious accommodation. He even equated the filing of the form with much more severe religious burdens, including a Muslim prisoner being forced to shave his beard and Seventh-Day Adventists being forced to work on the Sabbath.
In 2011, Kavanaugh dissented from a D.C. Circuit decision upholding the ACA. He took the startling position that a president can decline to enforce a major provision of the ACA, even if a court has upheld it as constitutional, “if the President concludes that enforcing it would be unconstitutional.”
In Kavanaugh’s view, the Trump administration could likely decline to enforce any provision of the ACA, including the ACA’s contraceptive benefit, even if a court rules it is constitutional. This is not hard to imagine given the administration’s repeated assault on birth control access for women.
Kavanaugh’s dissenting opinions raise serious concerns about how he, if given the chance, would decide the fate of the challenged birth control mandate exemption rules, or a future policy of non-enforcement by the administration. Upholding either would allow employers to eliminate contraceptive coverage and leave women with no ready, affordable, alternative.
Many women would face serious financial burden, being forced either to pay high out-of-pocket costs for contraception or purchase an unsubsidized insurance policy that covers contraception on the individual market. Imposing these high costs would hurt women of color the most. A recent survey found 54 percent of African American women and 57 percent of Latinas ages 18 to 34 have struggled to afford birth control.
For working women and women of color, full access to birth control is crucial in the ongoing struggle to gain equality. It is their lives, bodies, families, communities, and the lives of future generations, that are on the line.
The Senate must reject the nomination of Kavanaugh because his record shows that he will not protect the rights of women against discriminatory laws that curtail their access to birth control.
The health and economic security of millions of American women depend on it.
Diana Kasdan is senior counsel for judicial strategy at the Center for Reproductive Rights, working to develop innovative legal strategies and partnerships that will advance the current reproductive rights framework.
Dariely Rodriguez is the director of the economic justice project at the Lawyers’ Committee for Civil Rights Under Law, where she works to address ongoing economic and racial inequality through litigation, public education and policy advocacy.
