Griswold v. Connecticut — How Far Have We Really Come in Making Birth Control Access a Reality?

By Davida Silverman, Planned Parenthood Federation of America Senior Policy Analyst and Adriana Kohler, Planned Parenthood Federation of America Public Policy Analyst

This blog first appeared on the American Constitution Society blog.

This week marks the 50th anniversary of Griswold v. Connecticut, the landmark United States Supreme Court decision that affirmed the right of privacy and right for married couples to use contraception.  This decision was the first in a series of events that transformed the lives of American women and their families.

Half a century later, birth control has become integral to a woman’s life: More than 99 percent of sexually active women have used at least one form of birth control at some point in their lives. Yet, there is still a very real danger that the right to birth control may be derailed through legal attacks and ongoing efforts by lawmakers to undermine access to contraception.

Making Legal Birth Control Affordable

Even though birth control became legal and widely available after Griswold, lack of insurance coverage and cost barriers continued to prevent women — particularly lower-income women and women of color — from accessing the birth control they needed. Out-of-pocket costs for birth control could amount to up to $600 per year, depending on the birth control method.

In response, roughly 45 years after Griswold, women’s health champions in Congress pushed for a key provision in the Affordable Care Act (ACA) that would require most health insurance plans to cover women’s preventive care without out-of-pocket costs. The administration tasked the nonpartisan Institute of Medicine to determine which women’s health services to consider preventive. Based on those recommendations, the Obama administration adopted guidelines in 2011 (which took effect in 2012) affirming that the women’s preventive health provision must include coverage of all FDA-approved contraceptive methods without out-of-pocket costs.  

Yet, as with most laws, implementation is just as critical as a law’s initial adoption.  After the birth control benefit went into effect, many women continued to report difficulties and barriers when accessing the birth control coverage they need. Federal guidance provided too much leeway to health plans to use medical management techniques in their plan designs, which many health plans used to restrict access to certain contraceptive methods.  In April 2015 it became abundantly clear in two national reports released by the Kaiser Family Foundation and the National Women’s Law Center that some health insurers were not covering all FDA-approved birth control methods for women, as the law requires. For example, some plans covered birth control pills at no copay — but the plans excluded or charged copays for other birth control methods like the vaginal ring, the birth control patch, the shot, or intrauterine devices (IUDs). The result: Many women were still being denied the legal benefits they were entitled to under the law.  

In order to ensure the law’s goals are fully realized, the federal government issued guidance in May clarifying that insurance plans must cover all 18 FDA-approved birth control methods for women without out-of-pocket costs or delays (not a curated selection), including the pill, the ring, the patch, the shot, IUDs with progestin, non-hormonal IUDs, and emergency contraception. Although plans may still impose some restrictions on birth control coverage (e.g., not covering a brand-name birth control drug if a generic equivalent is available and medically appropriate), the guidance helps ensure women truly have access to a full range of birth control methods with no cost.

This guidance is a landmark step in turning a legal right into a reality.  Now, birth control must be covered by most health insurance plans without copay, and women must have access to the specific birth control method that best fits their needs.  Indeed, as a result of this birth control provision, more than 55 million women are able to benefit from coverage of birth control with no out-of-pocket costs. Moreover, in 2013 — the first year of the birth control benefit — women saved $483 million in out-of-pocket costs for birth control pills alone, or an average savings of $269 per woman.

The Continuing Challenge

Yet, this transformative step may be stopped in its tracks. Since the passage of the ACA in 2010, more than 100 lawsuits have been filed challenging the birth control benefit on the argument that the birth control provision violates religious liberty.  Notably, on June 30, 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that two closely held (private) for-profit companies could claim religious objection under the Religious Freedom Restoration Act and be exempt from the birth control benefit entirely.

The Obama administration swiftly responded to this harmful ruling by proposing a federal regulation that would establish an accommodation for such employers. Under the proposed accommodation, private for-profit companies can carve out coverage of some or all forms of birth control from its employer-sponsored health insurance plan on the basis of religious objection, but the health insurance company must directly provide birth control at no cost for those enrolled in the company’s health insurance plan. This proposed rule has yet to be finalized, but it is important to note that even after it is fully promulgated, a future administration could dismantle the policy entirely.

In addition, opponents to the law have brought lawsuits against federal regulations that accommodate certain religiously affiliated nonprofit employers. Existing federal regulations permit religiously affiliated nonprofit employers that oppose contraception, such as Catholic hospitals and universities, to refuse to cover some or all forms of contraception in their employer-sponsored plans, but require health insurance companies to provide contraception at no cost directly to those individuals enrolled in the organization’s health plan.

Although the accommodation explicitly permits religiously affiliated nonprofit organizations to refuse to cover birth control in its health plans, and only requires an organization to sign a one-page form or notify the U.S. Department of Health and Human Services in writing of its religious objection to covering birth control, certain groups have alleged that the accommodation substantially burdens its religious beliefs because women are still able to access birth control.

Lower courts are currently determining whether the accommodation, itself, is permissible, and legal scholars anticipate that at least one of these cases will proceed to the Supreme Court. (These cases could also have a substantial impact on the proposed accommodation for for-profit employers, like Hobby Lobby.) Accordingly, future rulings could strike down the accommodation and result in employees losing insurance coverage of birth control.  Likewise, even if the accommodation is upheld, a future administration could reverse this important policy.

Moreover, in the next couple of weeks the Supreme Court is expected to rule on King v. Burwell, which could roll back the significant progress made on access to affordable birth control.  The King case challenges a core component of the ACA, specifically, the availability of federal tax credits (subsidies) for low- and middle-income individuals who live in the 34 states that that did not set up their own health insurance marketplaces.  These tax credits have enabled millions to afford coverage for the first time.  If the Court rules against the administration, about 4.1 million women – including 1.4 million women of color, who have signed up for affordable Marketplace coverage in the 34 states would lose federal tax credits and be at risk of losing their health insurance, including coverage of birth control without a copay.

Holding Our Breath

Fifty years after the landmark Griswold decision, birth control has become a staple in the lives of American families, yet is still anchored in legal controversy.  As we celebrate Griswold’s powerful legacy and the important steps taken to make birth control access a reality, we must also hold our breaths that the courts do not undermine this tremendous progress. In the meantime, we also must continue to work to ensure that every woman in America has access to the birth control she needs.

Tags: Hobby Lobby, Griswold v. Connecticut, birth control