A Lawyer Explains How SCOTUS’ Birth Control Ruling Could Affect Your Coverage

"Any worker should know if their employer would discriminate against them for using contraception.”

A birth control pill pack on a designed background. Here's how SCOTUS' birth control ruling could affect your coverage.
Carol Yepes/Moment/Getty Images

On July 8, the Supreme Court determined that a Trump administration rule — allowing any employer to opt out of covering birth control through their health insurance for any religious or moral reason — can go into effect. The 7-2 decision undercuts one of the key provisions of the Obama administration’s landmark Affordable Care Act legislation, which guaranteed essential preventive care services at no cost, and qualified contraception as preventive care. Now, employers can decide not to cover these services, potentially leaving an estimated 70,500 to 126,400 people without access to birth control, as Justice Ruth Bader Ginsburg noted in her dissent.

Mara Gandal-Powers, the director of birth control access and senior counsel at the National Women’s Law Center (NWLC), tells Bustle what this ruling means for your birth control access going forward.

For the vast majority of people, your employer won’t object to covering your birth control. But for folks who will be impacted by this ruling, it will have a very big impact on their lives.

The first thing to know is that this didn’t go into effect when the ruling came out at 10:21 a.m. Wednesday. If you were planning to go to pick up your birth control prescription on Friday or Saturday at the pharmacy, your coverage shouldn’t change between now and then. Rulings don’t take effect until a mandate is issued, which happens 25 days after the ruling comes out. Then, all it takes for a company to deny birth control coverage is to file for an exemption with the Department of Health and Human Services.

If you work for a large employer and they decide to eliminate your birth control coverage, you will get a notice from your insurer. If you get something in the mail from your insurance company, it may be daunting to open it up, but you need to know what’s going to be happening with your birth control coverage. That’s the best place to start.

It would be reasonable to not want to tell HR, “I am worried about my birth control coverage,” when HR might be hostile to having that conversation.

For folks whose plans continue to have birth control benefits, this won’t change the range of methods covered. If your employer decides to no longer cover birth control, you could only have coverage for some methods and not others — e.g., they’ll cover the Pill, but not the implant. Some people may have no coverage for any method.

With the birth control benefit of the ACA, people often choose the higher cost and most effective methods like IUDs and implants. Before the ACA, out-of-pocket costs as low as $6 could prevent folks from accessing preventative care, including birth control. If you can’t access birth control, or if you put it off for a few days until you get your next paycheck, that’s when unintended pregnancy happens. I’m worried that insurance plans will only cover less expensive methods, even if that’s not right for the patient. Some people can’t swallow a pill or can’t take a pill at the same time every day because of their work schedule or family situation.

Normally, when it comes to a question about your benefits, you would go to HR and talk about it. But if you think your employer will object to birth control coverage, you may not want to talk to them about whether you’ll still be covered. It would be reasonable to not want to tell HR, “I am worried about my birth control coverage,” when HR might be hostile to having that conversation. That’s one of the fatal flaws of this rule.

Any worker should know if their employer (or potential employer) would discriminate against them for using contraception or not. There isn’t an official list of employers who have filed for exemptions or accommodations yet. In its 2017 rule, the Trump administration said the name of the company should imply if they object to birth control coverage, so you could make an informed decision about whether to work there. But that’s false. We know because of Hobby Lobby — there’s nothing about the name of that company that shows they object to some forms of birth control. We have no way of knowing what some employers may do.

I wouldn’t want to work for an employer that discriminates against some employees, and I know lots of other people feel the same way. That pressure could help companies decide to maintain contraception coverage.

The majority of Justices said that under the ACA, the Trump administration can issue rules pertaining to exemptions and accommodations. But this also means that any part of the government — the Department of Health and Human Services, Department of Labor, or Department of the Treasury — could also issue these kinds of rules. And that means that with a new administration, you could have a different rule on coverage. It’s too early to say what could happen there, but this is not fully over yet.

This interview has been edited and condensed for clarity.