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DECEMBER 2017 - Birth Control
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The Future of Women’s Reproductive Rights Hangs in the Balance

By Farah Tabibkhoei

As we begin to plan for the centennial anniversary of WLALA, we can’t help but marvel at the fact that WLALA was established before women had the right to vote.  Today, women’s rights are once again making headlines—this time, it is the attempts to curtail women’s rights and the movement to keep those rights.

Women’s reproductive rights are increasingly coming under attack.  In October, the Trump administration cut back the Affordable Care Act's (ACA) requirement that employers and universities provide employees and students with birth control coverage.  Under the interim final rules issued by the Department of Health and Human Services (DHHS), employers and universities are no longer required to include contraception coverage in their health insurance plans if the employer or university has a religious or moral objection to it.  Proponents of the new rules point to religious freedom as the justification for allowing employers and universities the option to deny women and their dependents access to reproductive healthcare.  However, the new rules effectively permit discrimination against women seeking birth control benefits. 

Multiple states across the country and several civil rights groups, including the ACLU, the Center for Reproductive Rights, the National Women’s Law Center, and Americans United for Separation of Church and State, promptly filed suit to challenge the constitutionality of the government’s rollback of the ACA’s contraceptive coverage requirement.  

Pennsylvania State Attorney General Josh Shapiro filed a federal lawsuit in October in the Eastern District of Pennsylvania against President Trump over the rules that could result in higher costs for birth control and other contraceptive methods for 2.5 million Pennsylvania women and their families.  In Pennsylvania v. Trump, the State is arguing that the rules violate constitutional and statutory laws prohibiting sex discrimination, the Establishment Clause of the First Amendment, and the Administrative Procedure Act.  The District Court for the Eastern District of Pennsylvania is set to hear the state of Pennsylvania’s request for a preliminary injunction on December 14.    

Last month, the WLALA board voted to join the National Women’s Law Center’ amicus brief in support of Pennsylvania’s lawsuit to immediately block the Trump administration’s rules that broadly exempt employers and universities from complying with the ACA’s contraceptive coverage requirement.  By signing on to the amicus brief, WLALA seeks to demonstrate the far-reaching harm these rules pose for employees and students in every state.  The amicus brief was filed on November 27, 2017 and can be accessed here.  Amici Curiae Briefs have also been filed by Massachusetts, California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Washington.

The government’s attempt to exercise control over women’s reproductive autonomy extends beyond its own citizens.  At the center of Hargan v. Garza is the government’s efforts to block the abortion rights of an undocumented teen immigrant who is in its custody.  The unaccompanied teen from Central America, crossed into the United States in September.  She is entitled to obtain an abortion under the Constitution and Texas law.  However, the government sought to prevent the teen from being able to travel to a clinic for an abortion to allow the government more time to find a “sponsor” to whom it could relinquish custody of the teen. 

On October 13, the teen sued several government officials of the DHHS.  She argued that by continuing to require the shelter to detain her, they were placing an “undue burden” on the teen’s exercise of her right to terminate her pregnancy.  On October 18, the district court granted a preliminary injunction prohibiting the DHHS from interfering with the teen’s right to an abortion.  The government subsequently appealed the order and sought an emergency stay of the preliminary injunction pending the appeal.  On October 20, the D.C. Circuit granted the emergency stay and held that the sponsorship process would not impose an undue burden if it was done expeditiously.  The teen subsequently petitioned for a rehearing en banc, which was granted.  On rehearing, the D.C. Circuit denied the government’s motion for a stay on the grounds the government did not satisfy the “stringent requirements for a stay” and remanded the case to the district court.  The district judge amended the injunction to allow the teen to be transported to a healthcare provider to get an abortion.  The teen obtained an abortion shortly thereafter.  Even after the teen terminated her pregnancy, the Solicitor General filed a petition for certiorari to the Supreme Court on the basis the court of appeals’ judgment could have far-reaching consequences for similarly-situated minors entering the United States.  The petition is currently pending and undoubtedly and regrettably shows the fight to protect women’s reproductive rights is far from over.