The Context of Historical Racism Matters in the Birth Control Benefit Case

Here is a brief history of the disparities in health care for women of color and why the outcome in Zubik v. Burwell is so important in this context.

Women of color face higher rates of unintended pregnancies and maternal morality than their white counterparts. Shutterstock

A shorter version of this piece was published at Religion Dispatches and the Public Rights/Private Conscience Project Blog.

If the plaintiffs in Zubik v. Burwell win, women of color who work at religious nonprofits could be stripped of their right to obtain birth control coverage at no additional cost. That’s what is at stake in the latest Supreme Court case challenging the Affordable Care Act’s contraceptive requirement, which instructs certain employer-sponsored health insurance plans to cover contraception with no co-pay.

Even though women of all backgrounds work for the plaintiffs in Zubik, women of color in particular will be disproportionately affected by the outcome: Even as unintended pregnancy rates have declined in recent years, racial and economic disparities have persisted. Moreover, historical racism in the health-care system has contributed to higher rates of maternal mortality among women of color compared to white women, which combined with other poor health outcomes have had an impact on the psychological, economic, and social vitality of these communities. If the plaintiffs in Zubik are successful, it could open up the door for many other nonprofit entities and for-profit businesses to opt out of providing contraceptive insurance coverage on which women of color depend.

Here is a brief history of the disparities in health care for women of color and why the outcome in Zubik is so important in this context.

Women of Color Have Been Denied Reproductive Liberty Throughout History

From the forced breeding of slave women to a campaign to sterilize incarcerated women who are disproportionately women of color, the institutional denial of women of color’s reproductive freedom has been marked throughout history. Slave women were egregiously deprived of any reproductive rights in the 18th and 19th centuries in their white owners’ efforts to increase the slave population. Not too long after that eugenicists popularized the idea of birth control by highlighting how it could reduce the birth rate of the most undesirable, including mentally ill and Black people in the 1920s. A few decades later, the Nixon administration pushed sterilization on low-income women, most of whom were women of color who were often coerced into the procedure. During this same time, Native American women were asked to undergo sterilizations by Indian Health Services. And more recently, prison officials were authorized to sterilize incarcerated women, the majority of them women of color. These are just a few examples of the ways women of color have been deprived of their reproductive liberty in the United States, leaving many women of color mistrustful of medical institutions and the government’s attempts to interfere with their reproductive health. The birth control benefit, however, empowers women of color to control their reproductive lives on their own terms.

The Egregious Reproductive Health Disparities Faced by Women of Color Are Rooted in Discrimination and Biases

The legacies of America’s troubling past can be seen in the egregious reproductive health disparities still prevalent in communities of color today. In 2003 the Institute of Medicine, the same institution that recommended to the Obama administration contraceptive care be offered with no additional co-pay under the Affordable Care Act, produced a study about the root causes of racial health disparities in America. The report found that many of the health disparities faced by communities of color are rooted in historic and current racial inequalities. These disparities are the result of socio-economic conditions, as well as of implicit biases held within the medical community about communities of color that lead to subpar treatment for routine medical procedures—treatment unequal to the treatment received by white patients. While just one small part of a health-care system that needs to be reformed, the contraceptive requirement provides women of color with similar access to contraceptive care as their white counterparts.

Women of Color Face Higher Rates of Unintended Pregnancies, Abortion, and Maternal Mortality

Women of color have higher unintended pregnancy and abortion rates than their white counterparts. More than half (55 percent) of all abortions in the United States are performed on women of color. These women are facing increased ramifications as abortion clinics across the country close under strict clinic shutdown laws. Such closings are making it harder for many low-income women and women of color to have an abortion, since these populations often cannot afford to cover the costs associated with traveling long distances to reach an abortion clinic. Some women have resorted to self-inducing an abortion, which can have legal consequences, as Rewire has reported.

Moreover, some of these unintended pregnancies can cost women of color their lives. The United States is now one of only eight countries—including Afghanistan and South Sudan—where the maternal mortality is increasing. These numbers become even bleaker for women of color in the United States, where Black women are four times more likely than white women to die in childbirth.

The Affordable Care Act’s Contraceptive Mandate Helps to Eliminate Some of the Reproductive Health Disparities Seen in Communities of Color

Eliminating disparities in reproductive health care, including high rates of abortion and unintended pregnancies, involves increasing access to contraception and family planning resources. Access to contraception allows women of color to plan when they will have a child, which research has shown provides them with greater financial stability and freedom. Many women of color, who on average earn significantly less than white women, cannot afford to pay for quality contraception. For example, the IUD is considered the most effective contraception available on the market today and costs between $500 and $1,000 without insurance. Because of its high cost, among other factors, only 6 percent of Black women have used IUDs compared with 78 percent who have used birth control pills, which have higher user failure rates. Continuing to provide women of color with access to contraceptive coverage at no additional cost will greatly reduce the reproductive health disparities that we see in communities of color. This is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.

It should not come as a surprise that when the U.S. Department of Health and Human Services asked the Institute of Medicine to come up with a list of women’s health services that should qualify as preventive care and require no co-pay under the Affordable Care Act in 2007, the institute included contraceptive care and counseling in its recommendations. Contraception and counseling can help right some of the wrongs done to women of color in the area of reproductive justice and liberty. The Affordable Care Act contraceptive mandate takes us one step closer to such justice. It would be a grave injustice for the Supreme Court to allow the plaintiffs in the Zubik case—and others who might follow in their wake—to take us one step back.