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Monday's Hobby Lobby decision is part of a deeper trend: even as Obamacare worked to expand access to contraceptives, decisions by both the courts and state governments have left American women with less access to reproductive health care than they did four years ago.
Since 2010, states have moved aggressively to restrict access to abortion and taken new steps to defund family planning programs. Advocates on both sides of the issue describe the wave of changes as unprecedented.
"Abortion access has changed dramatically," says Elizabeth Nash, state issues manager at the Guttmacher Institute. "The debate at the federal level affected what happened at the state level, and accessing abortion is much more difficult in 2014 than it was in 2009."
The Supreme Court fits into this pattern: it issued two decisions on reproductive health this term, both against laws meant to expand reproductive health access. Last week, the justices struck down a Massachusetts law that created a mandatory 35-foot buffer zone around abortion clinics as an unconstitutional violation of free speech rights.
And on Tuesday, the Court decided that Hobby Lobby and other for-profit companies don't have to cover birth control in their insurance plans.
"We've seen the courts become more conservative," Nash says, "And the most obvious example is the Supreme Court. It's very different than it was 10 years ago, and much more hostile."
2010 was a turning point for reproductive care
Jewel Samad/AFP
Ever since Roe v. Wade found a legal right to abortion in 1973, the United States has had a strong pro-life movement that has pursued more stringent abortion regulations. In the 1980s and 1990s, states pioneered spousal notification laws and 24-hour waiting periods prior to abortions.
Two things happened in 2010 that made the United States a more hospitable environment for restrictions on reproductive health. First was the midterm elections, where a wave of Republican state legislators came into office. Prior to November 2010, Republicans controlled the legislature and governor's seat in nine states. After the election, Republicans had control of both the legislature and the governor's mansion in 21.
"We saw what the future was going to hold in the election rights of November 2010," says Donna Crane, policy director at NARAL Pro-Choice America. "Those election results told us women were going to be in for a rough time."
The mid-term elections happened six months after the Affordable Care Act catalyzed a national fight over abortion and whether it should be covered in health insurance plans. Pro-life groups were frustrated with the outcome: a compromise where insurance plans would cover abortion, but be barred from using any taxpayer dollars to pay for the procedures.
"The frustration level with all the back room dealing that lead to the Affordable Care Act's passage was high," says Charmaine Yoest, president of Americans United for Life. "There was a real sense of betrayal and a sense that the system was broken, so I think that was rocket fuel for us."
Pro-life groups knew there wasn't much of a path forward with the federal government; Obama has been a supporter of access to contraceptives and abortion. Instead, they took their case to the courts and the states.
"We weren't going to go on a kamikaze mission," Yoest says. "You know when you're not going to win on the federal level. State activity offers another avenue."
Dozens of abortion clinics have closed since 2010
States passed a record 205 abortion restrictions between 2011 and 2013, more than the entire 30 years prior. The new laws have made it difficult for some clinics to operate: One survey, from pro-life group Operation Rescue, estimates that 87 separate locations ceased to perform surgical abortions in 2013.
In Texas, the number of abortion clinics has shrunk by half, from 40 to 20, since 2011. Arizona had 19 abortion providers in 2010; now it has seven. One clinic that shuttered posted a message on its website, directing clients go to the nearest abortion provider, in Houston, 100 miles away.
Many of those restrictions were squarely firing back at the Affordable Care Act. Twenty-five states, for example, now limit or ban abortion coverage in Obamacare's new insurance markets. None of those laws existed before health reform.
"State legislatures were becoming more conservative and momentum [towards restricting abortion] was building in any case," Nash says. "But certainly the health-reform debate pushed some states to adopt restrictions that they may not have otherwise adopted. Half the states have some sort of restriction on abortion coverage in insurance now."
States have gravitated towards certain types of abortion restrictions, including those that more stringently regulate providers, often requiring them to have admitting privileges at a local hospital. Pro-choice advocates see this as a backdoor way of driving clinics out of business if the local hospital refuses to provide the necessary admitting privilege.
Texas passed a law like this in 2013, and other states are weighing similar options.
"Over the last three years we've been involved in over 70 pieces of legislation that have come to passage," Yoest says. "It's really broad-based and, when you look at the clinic regulations and some other things, it doesn't all come back to the Affordable Care Act."
Contraceptives have faced new assaults
Philippe Huguen / AFP
A 2011 report from the Guttmacher Institute noticed a new trend in state-level legislation: states were specifically targeting birth control funding.
"For the first time in recent memory, state legislatures devoted significant attention to issues related to family planning this year," the report noted. "Five states moved to restrict funding to family planning providers, largely paralleling similar attempts made in Congress earlier in the year."
Women's health advocates describe the contraceptives landscape as mixed. Even with the Hobby Lobby decision, Obamacare will still expand no-cost birth control to millions of women with health insurance coverage.
"This was a hard-fought victory to get birth control coverage into the Affordable Care Act," Planned Parenthood president Cecile Richards told reporters yesterday. "More than 30 million women already have access and that number will be upwards of 46 million. It's important to keep in perspective that women are already benefiting."
At the same time, states have gotten increasingly aggressive at cutting family planning funding. In 2011, New Hampshire cut its family planning budget by 57 percent and Texas reduced spending by two thirds. Montana killed funding for family planning altogether.
Access to contraceptives is definitely a mixed bag," Crane says. "On the one hand you have this fantastic nationwide policy that will hopefully provide a floor of coverage. On the other hand, there are cuts to programs across the country and the ACA doesn't cover everybody."
What the Hobby Lobby decision means for the future
Chip Somodevilla / Getty Images News
The reproductive health landscape is decidedly different than it was four years ago, before a wave of new restrictions. The Supreme Court decisions exacerbate a trend that has unfolded in states for four years now: greater restriction on abortion and contraceptive access.
Whether this trend continues is hard to know. States have not passed as much reproductive health legislation this year. The Supreme Court decision on contraceptives could catalyze a wave of state action on their own laws: 21 states currently mandate that insurers cover birth control.
"Some of those laws have refusal clauses that are very tailored and don't apply to for-profit firms," Nash says. "Hobby Lobby could spark some thoughts about revisiting those."
Pro-life groups plan to continue with their work, building on three years of success.
"We think [the Hobby Lobby decision] gives us a stronger legal foundation moving forward on defending conscience rights," AUL's Yoest says. "This year was an off year at the state level, but there's still a lot more room to go."
