States May Protect Access to Birth Control

According to the Centers for Disease Control (CDC), abortion rates in the United States plunged to an all-time low in 2014 (this is the most recent year for which there is data). The total number of abortions during the year also dropped, along with the ratio of abortions to live births. The CDC attributed the reduction to increased use of birth control, stating, “Unintended pregnancy is the major contributor to induced abortion. Increasing access to and use of effective contraception can reduce unintended pregnancies and further reduce the number of abortions performed in the United States.”

Recent findings by the Guttmacher Institute agree about the importance of access to birth control, especially for young women. Laura Lindberg, one of Guttmacher’s principal research scientists in the field reported, “Our new data suggests that recent declines in teens’ risk of pregnancy—and in their pregnancy rates—are driven by increased contraceptive use.”

Yet, in the face of the evidence-based importance and effectiveness of birth control, the Trump administration, announced in October a rule that guts the access to contraception that was previously protected by the passage of the Affordable Care Act (ACA) in 2010. Trump’s new rule makes it much easier for employers, and even insurance companies themselves, to opt-out of contraception coverage if they have religious or moral objections. And companies can opt-out without notifying the government, avoiding the ACA rules that would trigger alternative coverage for women. (The National Women’s Law Center and Americans United for Separation of Church and State have recently filed a complaint challenging the rules.)

Fortunately, some states are stepping up to protect women’s access to reproductive health options. Last month, Massachusetts became the first state to mandate that all employers cover birth control, regardless of any religious objections. Massachusetts Governor Charlie Baker tweeted, “We are proud to join our legislative colleagues to protect women’s health care & access to family planning services. MA leads the nation with near universal health coverage & signing this bipartisan bill into law ensures critical access to important contraceptive coverage.”

Planned Parenthood President Cecile Richards praised the new law and encouraged other states to take note. “Birth control coverage is still at risk for women nationwide under the Trump administration. We need everyone—lawmakers on both sides of the aisle, business leaders, artists—to follow Massachusetts’ lead and take action.”

There is certainly precedent for states protecting access to birth control even when federal law does not. Prior to the ACA’s passage, many states had “contraceptive equality” laws that required most insurers to cover prescription birth control, although these often made provisions for religious exemptions and cost-sharing (meaning that insurers could require a co-pay for contraception). After the ACA passed, several states updated their laws to match the higher federal standards.

Once Trump was elected and Congress began to make the dismantling of the ACA seem more likely, some states moved to protect the contraceptive rights that they saw as endangered. For example, Vermont, Colorado, Maine, Nevada, Oregon, Washington, and Virginia all updated their laws after the Presidential election to more closely follow federal ACA guidelines.

There are, of course, two ways to view trends highlighted by the new law in Massachusetts. On one hand, the laws mean that women (and their partners) may be moving back to a pre-ACA time when living in a blue state offered opportunities for reproductive health and choice that residents in red states might not be able to access. On the other hand, the trend also means that there is hope that the Trump administration will not be able to restrict access to birth control as much his right-wing allies would like.

As Andrea Miller of the National Institute for Reproductive Health put it, “We are on the cusp of seeing… a more aggressive push at the state level to protect affordable access to contraception…. The feds can set a floor. States can decide to do better.”