July 9, 2020

New Mexico women can still get contraception coverage despite Supreme Court ruling

Laura Paskus

The U.S. Supreme Court.

New Mexico women who need contraception are likely safe for now despite the U.S. Supreme Court’s 7-2 decision which will allow private companies to opt out of providing insurance coverage for it, according to the American Civil Liberties Union of New Mexico.

A recent law passed in New Mexico enables women in the state to continue contraceptive coverage despite the court’s decision which now enables private companies to deny contraception coverage by citing moral or religious objections.

But, Ellie Rushforth, reproductive rights attorney for the ACLU-NM warned, the future is uncertain.

“It doesn’t mean we’re fully insulated from future issues related to this,” she said.

The Supreme Court overturned a lower court’s decision on Wednesday in the case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. A nonprofit run by nuns, Little Sisters of the Poor argued that sending a form to the federal government to let the government know that the organization objected to covering contraception for its employees was an “undue burden.” The group felt that doing so went against their values because the necessary form then enabled the federal government to alert the insurance provider that it had to provide no-cost coverage for the contraception for Little Sisters of the Poor’s employees.

Because Little Sisters of the Poor do not believe in the use of contraception, the nuns objected to the federal government’s rules that required the organization to produce the paperwork even though the paperwork provided an exemption in the ACA so the organization didn’t have to provide the coverage itself.

Rushforth said a New Mexico 2019 contraceptive law protects women in New Mexico from being affected by the court’s ruling.

Related: Reproductive rights under attack, say advocates. Here’s what you can expect.

She said Native women who access contraception through Indian Health Service also will not be affected by the court’s rule because IHS is a government entity. The question before the court was whether a private company could opt out of allowing women to access contraception through the ACA.

Rushforth also said the court’s decision isn’t a “mandate that employers or universities drop contraceptive coverage from plans and most employers will continue to provide that coverage.”

According to government estimates, as many as 120,000 women could be affected by the court’s decision and lose contraception coverage. Wendy Basgall, staff attorney for Southwest Women’s Law Center, said the court’s decision will likely impact lower income women and women of color the most.

“Contraceptives can be up to $1,000 a year,” Basgall said. “If you make just enough to put a roof over your head and feed a family, you may not have that extra for contraception.”

According to reproductive research from the nonprofit Guttmacher Institute, the number of unintended pregnancies went down in the years following the passage of the ACA and many attribute that to the ACA’s contraception coverage.

“They seem to be talking out of both sides of their mouth in terms of what they want,” Basgall said.

President Donald Trump is also a petitioner in the lawsuit, alongside Little Sisters of the Poor, and the case is sometimes referred to as Trump v. Pennsylvania. Trump campaigned on appointing anti-abortion judges to the Supreme Court and has succeeded in appointing two, Justices Neil Gorsuch and Brett Kavanaugh.

Justice Clarence Thomas wrote the opinion. Justice Elena Kagan wrote a concurrence in which she said she agreed with the opinion but not the opinion’s reasoning. Justice Stephen Breyer joined Kagan in her concurrence.

Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Basgall said Kagan’s concurrence was “disappointing,” but said Kagan took issue with the way the Human Rights Services Administration issued the rule for religious and moral exemptions to the ACA to begin with.

“The process was flawed,” Basgall said.

Lisa Maldonado, executive director of New York-based Reproductive Health Access Project told NM Political Report that the ruling is an attack on women.

“It’s a huge hit on women,” she said.

She said it also highlights the pitfalls in connecting health insurance coverage to employment.

Basgall said the law protecting contraceptive coverage in New Mexico was originally designed with the concern that conservatives might eliminate the ACA altogether. She said the U.S. Supreme Court is expected to consider the constitutionality of the ACA during the next term.

Vicki Cowart, president and chief executive officer of Planned Parenthood of the Rocky Mountains, said the impact of the court’s decision could not be “overstated.”

“We are already grappling with the disproportionate impact barriers to health care have for rural communities, low-income communities, and communities of color. The last thing we need is to add yet another obstacle in the path to getting high-quality care,” she wrote.