Wait...It's 2020 and We're Still Fighting Over Birth Control?

On May 6th, the Supreme Court will hear a case regarding Trump administration rules that would allow virtually any employer or university with objections to contraception to exclude birth control from any employer-based or student health plans. Mara Gandal-Powers with the National Women’s Law Center sits down with us to talk about this landmark case and how we got here.

Note: For a detailed deep-dive into the Affordable Care Act’s Birth Control Benefit, find our podcast here.

The Obama administration created a religious exemption for a narrow set of churches and other religious institutions that object to birth control coverage. That means that folks covered in those plans did not have coverage to birth control. Religiously affiliated non-profits protested having to provide birth control so the Obama administration developed a new accommodation where a third party would be able to step in to provide no-cost birth control if you worked at a religiously-affiliated non-profit that did not provide contraceptive coverage within their insurance. Many organizations, (including Hobby Lobby) in a seemingly never-ending line of lawsuits, have utilized the Religious Freedom Restoration Act in an effort to further prevent the provision of contraception coverage to their employees. 

Enter the Trump-Pence administration who issued an interim-final rule in 2017, which immediately affected the ACA’s birth control benefit. The first part of this rule allows any employer or university to deny birth control coverage based on religious objections. The second part of the rule allows non-profits and employers to deny birth control coverage based on moral objections. 

If these nation-wide rules were to go into effect, hundreds of thousands of people could lose their birth control coverage. That’s why this Supreme Court case is so important—because birth control is basic health care. .

Links from this episode

National Women’s Law Center on Twitter
National Women’s Law Center on Facebook
Birth Control Benefit podcast episode
RSVP to the #HandsOffMyBC rally by NWLC
NNAF Fund-A-Thon
List of abortion funds

Transcript

Jennie: Welcome to RePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: I hope everybody is doing well. I'm having a bit of a down week this week as I'm recording this. The week before the episode came out and my grandma died this week. She was 95 years old and it's hard. I am-- I'm doing okay. It's just made this week a little bluer. And today when I'm recording, it's raining. So that's not helping either. You know, I, I'm trying not to be sad about it. She was unhappy for a long time and not doing great. So it is for the best, but it doesn't make it any easier. My family is all in Wisconsin and I'm here in Washington, D.C., so it was hard to not be there. And it's also hard to think that, you know, they're talking about having a celebration of her life in August since they can only do something really small right now and just not even being able to plan if I could possibly be there that far. Um, it's something that’s far away. It makes it a little hard right now. But like I said, I'm trying not to be sad. I'm trying to think of happy things. So I figured I would just share a funny story from, let's see, this was right after I moved to D.C., so I don't know, like… 14 or 15 years ago and I was home for Christmas and my family--my mom is one of 11 kids-- so we have a very, very large Irish Catholic family that gets together every year for Christmas. And grandma was harassing me about why I didn’t have a boyfriend and I said, “well grandma, you know, I met this really nice young man and you know, he was really great, but he was a Republican. Did, did you want me to date a Republican?” My grandma's like, “Oh no, no, no. Definitely not that.” I don't know why. It's just one of those things that sticks with me. Grandma was kind of spunky like that. So I just hope that made you laugh a little bit. Made me laugh. And uh, it's just nice to think of some of the happier things. So anyhow, with that, I just wanted to talk about one other quick thing before we turn to this week's episode. And that is something we've talked about several times and I always kind of have it as an action item when we talk about abortion and that is abortion funds. So this past week is normally when abortion funds have their largest fundraiser every year; the Bowl-A-Thon, and they can raise up to half of their whole budget and so since they haven't been able to have kind of the normal events they would have like a Bowl-A-Thon, or any of these other in-person gatherings, it's a little bit harder for them to raise money.

Jennie: So I know a lot of us are struggling right now. I am lucky and privileged enough that I was able to donate a little more this year to a couple of different abortion funds so if you are able it would be a great time to donate to your local abortion fund or another local abortion fund. So I will make sure that we include a list of all of the local abortion funds in our show notes. They could use your love right now. Okay and with that, let's turn to this week's episode. This week we talk about the big Supreme Court case that is being heard tomorrow. If you're listening to this, when it comes out where they are going to be talking about the birth control benefit. Again, I know, I know it is 2020 and we are still fighting over birth control. Wild. Anyhow, we have Mara Gandal-Powers from National Women's Law Center with us to talk all about the birth control benefit and what is happening at the Supreme Court tomorrow. And with that I'll turn it over to my great interview with Mara.

Jennie: Hi Mara. Thank you so much for being here today.

Mara: Thanks so much for having me. I'm very excited for us to be together, but apart.

Jennie: I know. So I was actually going through and updating some stuff on all of my podcast files to make sure like the guests showed up better when you were online and I realized you were one of my very first guests.

Mara: I think I may have been. It was, uh, I remember coming to your office and sitting in the little podcast room. It was really fun. So I'm glad to be back.

Jennie: I know the sad thing is, we're not in person, but we're basically discussing the same thing.

Mara: Yeah. Which is, yeah, I mean, yes, yes. Birth control. Awesome to always talk about not this line of cases and things that continue to happen. So yeah, no, not awesome on that front.

Jennie: No. Okay, so let's get started. Maybe we should do a little bit of like how did we get here before we get to the SCOTUS case that's up?

Mara: Yeah, definitely. Definitely. So there is a very long history of administrative rulemaking and multiple Supreme Court cases that have led us to where we are today. The one that many folks have probably heard of or that is clicking in their mind is the Hobby Lobby case. But there's a lot to it. So the cases that the court is going to hear on May 6th are about the rules that the Trump administration issued, um, that will allow virtually any employer or university with religious or moral objections to birth control, to exclude birth control from employee and student health plans. So how did we get all the way here where the Trump administration is doing that? And I think as most of your listeners probably know, the Affordable Care Act’s birth control benefit is the part of the ACA that requires insurance plans to cover women's preventive services, including birth control without copays, deductibles or coinsurance. Like you get, your birth control is paid fully by your insurance and you don't have to take any money out of your pocket. And that part of the law has been a total game changer. It went into effect in August, 2012 so we're like seven and a half years into this. And right now, we know that about 61.4 million women have covered birth control without out of pocket costs because of it. Um, and when we think about it, you know, I think about what's so great about it, first of all, your health insurance that you're paying for meets your needs, right? The specific needs of, of folks who need birth control, but also when you're not paying those out of pocket costs, which have been estimated in one year alone to be a billion dollars, that money can be put towards other necessities like rent and utilities. So it really is a game changer, not just for your health care, but also for your, you know, where your, your budget is. And the other thing that we know about the benefit that makes it so great is that we know that people are now making their choices about their birth control method based upon what they want and what their healthcare provider recommends. Not just because based on the high upfront costs. So in particular, we've seen some early evidence that more people are choosing the most effective kinds of birth control when they don't have that cost barrier, which is really great. People being able to make that choice without cost being a factor. So I think that the next thing to think about the birth control benefit, doing really great things--but this all really does date back to some of the regulations and things that happened when the Obama administration was implementing the ACA—so, the Obama administration issued regulations that that sort of would give health plans an understanding of how to cover preventive services. And you know, one of the things that they did was they created a religious exemption for a narrow set of churches and other religious institutions that object to birth control coverage. And so there's folks who were in that plan. Those plans didn't have birth control coverage at all. And after they announced that exemption, um, there was a large outcry from other religious organizations, religiously affiliated organizations that object to birth control coverage. And so over about 18 months, there were several rounds of administrative rulemaking where, you know, the Obama administration issued proposed rules…And I'm sure many of your listeners wrote comments saying, you know, here's what would work. Here's what wouldn't work. Here's what the impact would be. And at the end of all of this, the administration finalized the exemption and they also created, um, what is known as the accommodation, which is for religiously affiliated nonprofit organizations that had an objection to birth control coverage. And so what's really important to know about the accommodation is that while it allowed birth control to be excluded from the plans for eligible organizations, it ensured that people in those plans still got birth control coverage. I think a real-world example helps people understand that a little bit better. Um, so say you are a nurse or a medical assistant and you work at a religiously affiliated hospital that objects to birth control coverage. The plan that you get through your employer would exclude birth control coverage, but a third party would step in and it's usually the insurance company to ensure that you get birth control without out of pocket costs just like everybody else. Right? So your experience working at that religiously affiliated hospital, that objects to birth control coverage, your experience of getting birth control would be the same as if you worked at any other hospital that didn't object to birth control coverage. And, and that's really key, right? So the administration set up a prophet that, you know, while is not perfect, does ensure that people get birth control. So that's, that's sort of what happened on the regulatory side. And then we get to Hobby Lobby. So in the midst of all this regulatory work happening, the lawsuits against the birth control benefit, were popping up and there were several, several that were filed by for-profit corporations. So you know, for, for-profit businesses like Hobby Lobby who said, we object to birth control coverage, this violates our rights under the Religious Freedom Restoration Act, which most people who deal with it a lot referred to as RFRA. And this, those cases made their way up to the Supreme Court. And a very closely divided court ultimately ruled in 2014 and said, you know, certain companies like Hobby Lobby could use RFRA to get out of compliance with the benefit. But the court also made clear that employees at those companies still need birth control coverage. So after the case was decided, there were, was more rule rulemaking done by the Obama administration and so these kinds of companies now also got the accommodation right so closely held for-profits that the accommodation as well, which is really important because that means the people who work there could get the birth control that they need.

Mara: Then there was another line of lawsuits. It's kind of like, it just keeps on growing. It's just never ending. Those ones were filed by nonprofit organizations and they claim that the accommodation process itself violated their rights under RFRA. So the things that they had to do to say I object to birth control coverage, signing a paper or telling their insurance company that they object a piece of those things in and of themselves, they said violated their rights under RFRA. And that line of cases made its way up to the Supreme Court... It was argued in 2016 and what's interesting, we actually didn't get like a decision from the court. In that case, what we got was an order sending the consolidated cases back down to the various circuit courts that they had come up with through and directing the parties. So that is, you know, the nonprofits that we're objecting and the federal government to reach a resolution that would ensure access to birth control. So essentially the court was saying like, we really think you guys can figure this out, like we're not rolling here. And these cases were still sitting in the courts when the transition in administrations happened in January 2017 which sort of, it takes us up to where we, the beginnings of where we are now.

Jennie: Yeah, it was like a really long and strange road and I just remember every time I would see a new lawsuit popping up just being like, wait, are you kidding me?

Mara: Yeah. Yeah. I mean it's honestly like dozens and dozens of lawsuits and, and in many cases you know that these folks are represented by the same people, but you know, somewhat coordinated from, from the folks who were objecting to birth control coverage.

Jennie: Yeah. But seemingly like almost whack-a-mole in a way.

Mara: Right.

Jennie: Okay. So you're right, that brings us up to the Trump Pence administration. So what did they do that changed things?

Mara: So yeah, I think, you know, I was sort of expecting the birth control benefit to be one of the first things this administration would try to go after when they came into power in 2017 and we didn't see it, you know, anything officially happening for a little while. The first thing we saw was in May 2017 the president issued a so-called, and if you could see me, I'm doing air quotes, “Religious Liberty executive order” that directed the Departments of Health and Human Services, Labor and Treasury to consider changes to the ACA’s birth control benefit. We actually didn't see any rulemaking on that until October 2017 that's when they issued interim final rules. Those three departments, and I'll talk about sort of the details of the rules, but an interim final rule is essentially a kind of rule that goes into effect immediately. There is a chance for folks to write comments, but those comments don't change what is happening in the immediate timeframe of that group going into effect.

Jennie: So the rule could be finalized and change potentially, but an interim final rule really is in effect.

Mara: Yeah. What we did see was that people were really outraged at the rules that the Trump administration proposed. We saw, you know, from our reproductive rights and health coalition broadly over 550,000 comments against the rules were submitted. And you know, no matter what administration it is, you know, they're required by law to read and consider every comment that is submitted. And so we didn't see the administration finalize those interim final rules until November 2018 and they did so without making any changes to the rules. Um, there was like one or two tiny word tweaks, but no substantive changes despite the fact that so many people had spoken out and, you know, they were doing it in a process that was blatantly illegal. The rules were discriminatory for all the reasons we're going to talk about the lawsuits. But I think the other thing to note is that they finalized the rules literally the day after the November 2018 election. And you know, it was, it was a real blow just sort of in terms of what the feeling was that day in the world and where we were headed. And then at the end of the day, these, they finalize these rules and it was pretty clear, like they didn't want to have to make anyone talk about them before the election, when they were out on the campaign trail.

Jennie: Right.

Mara: Because birth control is super popular, the birth control benefit is very popular and I think didn't want to have to force anyone to talk about what they were ultimately planning to do. Um, but the, what the rules themselves do, which you know, it is the grant really sweeping exemptions to the Affordable Care Act’s birth control benefit. So whereas the prior rules had a very narrow exemption for churches and other houses of worship that object to birth control coverage, the Trump administration's rules-- and there's two of them--the first one allows any employer or university to deny birth control coverage based on religious objections, and then the second rule allows nonprofits or for-profits that are not publicly traded and universities to deny birth control coverage based on moral objections. Um, one commonality between the rules, which I think is really important, especially in terms of the impact is that in both the Trump administration's religious exemption rule and the moral exemption rule, they say that the accommodation continues to exist, but it's optional, right? So it's at the discretion of the objecting entity as to whether they participate in the accommodation, which ultimately means that there's no guarantee that people in those health plans are going to get the coverage that they need through that third party. Right? So the example I used earlier, if you work at that hospital that objects to birth control coverage, it is literally up to the hospital board or the CEO or whoever's making that decision, whether they will use the accommodation or not, whether you get birth control coverage or not. So it's, the impact is pretty devastating for folks. The odds are you're not going to want to accommodate. Yeah, I mean I think, I mean you don't mean, and that's one of the things that we don't know and is problematic with the rules, is that right? It's not like you can go and you know, look up the employer on some database that health and human services or labor is holding onto that says, Oh, your employer does object or your employer uses the accommodation. There's no tracking of it. So there's very little transparency and you know, part of the Trump administration's justification in the rules is, Oh, people would know whether they're applying for a job at a hospital that is religiously affiliated based on the name of the hospital or the other kinds of indicators. And we know that that's simply not true, number one, because a lot of these places don't have names that indicate that they are religiously affiliated. And I think the other part of that that's really important to note is that we know that folks with lower literacy and lower health literacy are less likely to pick up on those cues that indicate that a provider or health insurance company is religiously affiliated. So we know that when folks are applying for jobs, they're going to have that same barrier and not necessarily know. So it's really problematic that, you know, we don't know. You know, there are entities out there that haven't filed lawsuits, you know, so we don't, they could potentially think the accommodation isn't too bad for them, but there's no way to know, right. There's no way to know. But I think, you know, the administration's rules are there drastic departure from prior law. You know, the case that we're going to talk about, it's essentially, it's Hobby Lobby on steroids, right? It's to the extreme and they're, they're trying to let virtually every kind of employer out of the birth control benefit, so it violates Hobby Lobby, which said they can, you know, they need to ensure that people get birth control coverage as well as the order from the Zubik case, which said you have to reach a resolution that would ensure women's access to birth control and the rules, you know, if they were in effect, they would lead people on their own to find and pay for contraception. And you know, that's just, it's just discrimination. Uh, there's, there's no other way to say it.

Jennie: Okay. So does that bring us to the cases?

Mara: Yeah, let's, let's talk about the cases. So I think the place to start is knowing that, and this, you know, it's not unique to the birth control cases, but the state attorneys general have been really on it in terms of filing cases against a lot of the Trump administration's rules. So we saw very quickly after the interim final rule was released that the case, the case that ultimately is now making its way to the Supreme Court, it was filed by Pennsylvania and New Jersey together. There was another case that was led by California that has about a dozen states on it that was filed pretty quickly. Massachusetts filed the case as well. And so, you know, big shout out to the state attorney's general who've been doing amazing work for the last several years, including on this case. And you know what we ended up seeing with the Pennsylvania and New Jersey case, the district court block the rules. It was a really strongly worded decision. There's nationwide injunction issued against the rules, which means that nowhere across the entire nation these Trump rules go into effect. So I think that's a really important take home for folks is like… no one's birth control coverage should have changed yet because of the Trump birth control rules, because of this nationwide injunction. The Trump administration obviously appealed that decision to the third circuit and the third circuit affirmed it. And I think what's very interesting and, and part of what is…you'll hear them talk about in the Supreme Court, is that there were folks trying to intervene in this case. And those folks are an order of nuns called the Little Sisters of the Poor. And attempting to intervene means trying to become a party to the case. And they're essentially saying, we have a stake in this and we should be a party here. Uh, the third circuit denied their request and the Little Sisters of the Poor and the Trump administration both appealed the third circuit's decisions petition the Supreme Court, um, to hear them. And the court agreed to hear both cases in one hour of consolidated arguments. And I will say, you know, they, the court decided to hear this case with the original set or schedule of oral arguments. This is going to be the last case. I mean they really picked it out of the group of cases that were still sitting in front of them as one they wanted to hear this session. Right. So that's, that's what the case is. Um, but what the issues in the case are really is, you know, did the, the Trump Pence administration have authority to issue these rules? They didn't. Long story short, um, were they properly issued? No, but they're also considering whether lower courts like the district court in this court can issue nationwide injunctions in this case, in these types of cases. And whether the Little Sisters of the Poor can intervene, you know, every lower court. So in this case, in the California case, in all the other cases, they have considered the question of whether the administration could issue these rules, has agreed that they can't, right. It's, it's not a tough question. They didn't do this properly. But you know, that is one of the questions that's, that's coming up. You know. And then the one other case that I, you know, I think I would be remiss if I didn't talk about, is that the National Women's Law Center, we filed a case on behalf of our clients, Irish for Reproductive Health with our co-council Center for Reproductive Rights and Americans United for Separation of Church and State against both the Trump administration's rules and the University of Notre Dame for a settlement agreement that the administration and Notre Dame entered into. And so that case right now, it's stayed because of the Supreme Court decision that's forthcoming. The judge, he said he thinks that that will be enlightening as to handle our case, but that is also out there and pending as well.

Jennie: Okay. So the case is coming up soon when this comes out. I think it's actually going to be argued the next. day So this a good primer for what to expect. So what, what would it mean if the Supreme Court were to rule in favor of the Trump administration? What would happen?

Mara: I mean, you know, I think there's a, there's a number of different questions, right? That are going to be before the court. I think the thing that is most, at least in my mind, the thing that is that is the question I'm focusing on, right, is if these birth control rules go into effect, if the nationwide injunction, it's gone and they're going into effect, what does that mean for people in real life? Right? We haven't had the rule in effect yet. You know, hundreds of thousands of people could lose their birth control coverage. And you know, I, I don't want that to sound too alarmist, but it's real, right? We know that 61.4 million people have this birth control coverage right now. So the vast majority of people will continue to, they have their birth control coverage, but you know, for hundreds of thousands of people, this'll be a real impact on their life. And the folks that I think about when I think about who is this going to impact are the people for whom, you know the price of birth control is going to be out of reach for them some or most of the year, right? When they look at their budget, how can they make ends meet and pay for this health care when it's not covered by their health insurance? Right? So thinking about low wage workers and other folks who are struggling to make ends meet who are facing barriers to care. So I think about, you know, nurses, nursing assistants, you know, folks who are right now who are considered essential workers during the Coronavirus crisis who potentially are going to be losing their birth control coverage. And that is, is really, it's scary to think about what that looks like particularly in the middle of a public health crisis. But you know, the impact is really, it really highlights, and I think, you know, what we've been going through over the last six weeks, two months, is, is seeing how systemic barriers to care impact people's health outcomes. And what would happen with the birth control rule is along those same lines, right? If, if you face barriers to care because you live in an area that you can't get to care or because you have that cost barrier now or because of discrimination or because there aren't providers that you can trust in unity, all of those things impact people's health outcomes. And I think we would see the same thing. Same thing with the birth control rules, but you know, and it's not just about birth control, right? So birth control is so critical to people's health, but also their quality, their ability to participate in society on equal footing, their economic security. Um, so your ability to decide if you want to have kids, when you want to have kids. Is it now? Is it when you finish this school that you're in now? Is it when you get a promotion, is it when you get the next job? Like those are such crucial decisions, decisions in people's lives. Birth control plays a huge part in all of that. So if your access to birth control is that is threatened, all of those other things are threatened and undermined as well.

Jennie: Yeah. And I think that it all is especially poignant right now with everything that's happening with so many people losing their jobs or losing a steady source of income.

Mara: Yeah, yeah. Yeah. And I think that's a really good point cause I think most people, most people know, but most families are dual income families, right? So people are, you know, if they, for folks who still have their jobs and folks who still have their health insurance, they may still the dealing with financial setbacks because their partner or their parents that they live with or their cousin, whoever it is that's in their family unit, has lost their job. Right? So having no cost birth control coverage is so important for everyone right now because of, you know, it, everyone's facing these kinds of tough questions. What's next and, and how do I sustain myself through this?

Jennie: Okay. So I think, and I'm thinking you want to talk a little bit about was the number of amicus briefs that have been submitted to the Supreme Court on behalf of birth control.

Mara: Yeah, yeah. You know, sometimes, you know, sometimes in the work it can be really tough because we're up against these Trump rules. We know that, you know, there are, there are folks in this administration or folks in the judiciary, there are folks particularly in the Senate who are not supportive of access to birth control. But then, you know, you get the day that you get to read the amicus briefs that are sent to the Supreme Court and support of Pennsylvania and New Jersey. And it feels really, really good because you get to see really the breadth of folks who are supportive, right? It's not just your typical groups that, um, that are, you know, on record with the Supreme Court saying, you know, these rules, these rules are wrong. These rules were illegally issued. These rules should never go into effect. You know, the members of Congress brief, which had 185 members sign on, which is a really amazing number, particularly given that, you know, just a little timeframe that we were trying to get, you know, folks are trying to get signed on for that was during the coronavirus crisis. So as you can imagine, members have a lot of high priority things. And to get that many on at that time I think was really, that's impressive. You know, there was a brief filed by a set of corporate entities over a dozen corporations that you included plus the U.S. Women's Chamber of Commerce, talking about why contraception is important for business and important for women in business, which is fantastic. And like, you know, companies that people know and love, right? So you've got Ben and Jerry's, Lush, Seventh Generation… and it's great. I think it's great to see folks coming out and saying, you know, yes, of course birth control is important and you know, it's part of healthcare and should be covered. You know, lots of support from religious leaders, from labor groups also saying from the worker's perspective, birth control is really important. LGBTQ groups talking about, you know, why birth control is important within their communities, but also what the impact could be over the long-term, the precedent this case had set in terms of excluding care and also, you know, healthcare providers. Right. So I think that's a really important voice in all of this to say birth control is important for our patients, the clients that we see. And, and really to lend that air of the health service side of this and why it's important for people to have access to birth control, you know, to time and space their pregnancies as they see fit. Um, and for, for their own safety in a lot of cases. So it's, you know, it's a, it's a nice day to get to read all of those, you know, take a look at those briefs and see, you know, our great coalition of people who are out there and, and that are really reflective of what the real world thinks about birth control.

Jennie: Yeah. One of the things you mentioned was LGBTQ groups and what that can mean for some of the challenges though we have coming around access to care. So what are some of the, that makes me think of you, what are some of the larger questions and the implications that this SCOTUS case is considering in this case or could have impacts on things later?

Mara: Yeah, yeah. I mean, I think, you know, folks, folks who may have read or may have remembered hearing Justice Ginsburg's line in, in the Hobby Lobby dissent that it was quoted all over the place and I think is really precious, is, you know, she said, “The court I fear has ventured into a mine field.” Right. And we are solidly right in the middle of that mind field that she envisioned right now. So the, the question that she was really pointing to and that, that I think a lot of this leads up to is, you know, how can the Religious Freedom Restoration Act—RFRA-- used right in the future? Is it an, is it a shield which protects individuals from an enforcement of a law that would violate their beliefs? Um, that's how it was originally intended or is it a sword, which is how we're seeing this administration on private entities use it these days, right? Like going out and splashing at the ACA birth control benefit with no regard to the harm to other people. And that is I think a huge part of what the long-term impact of this case is going to be in addition to, to access to birth control. Right. So in terms of LGBTQ specific services, that's something that I think folks are very concerned about how, how the precedent of RFRA in this case would be used. I think another area, and this is why we saw, you know, the American Academy of Pediatrics submitted a brief in this case morning about how this precedent, you know, if these rules go into effect, it could be a precedent to undermine the vaccination requirements, which are crucial to public health and you know, security, you know, that's on people's minds right now. Hugely on their minds. Like when is there going to be a vaccine for coronavirus and you know, will people do it? Are we going to get herd immunity? How do we get to a point where it's safe and you know, I think this, this is right on point there. If it wasn't, you know, if folks could exclude it, like if your boss thought that the vaccine was yeah, junk science, would it be excluded from your health plan and then how could you get it if it was unaffordable, affordable. That's a real challenge. So yeah, that is one of the big things I think that that we are going to see coming out of the opinion. And this is what, where do we go from here with RFRA? You know, one of the other things that I think is important is the question about nationwide injunctions that the court is gonna take up. You know, I sort of, I started by talking about how great the state attorneys general have been and one of the ways that they and others have really been able to keep a lot of the bad rules. That's what I call them, to my kids. Bad rules that the president and his administration have. I've tried to put it into a place as nationwide injunctions. It keeps the rules from going into effect. So if the court says anything more broad about nationwide injunctions, then the one specifically in this case, you know, I think that is something to be, to be keeping an eye on. But you know, particularly in this case, when you think about it, you know, there's a reason why a nationwide injunction makes sense. Right? So the nationwide injunction is in a case related to Pennsylvania and New Jersey. But you know, people live their lives across state lines, right? You may work for a company in Pennsylvania and live in Delaware, live in Maryland or someplace else. And you know, just because your company's insurance in Pennsylvania says we're not going to comply. We, you know, we're not going to comply. It doesn't, it shouldn't impact what's happening in other states and your rights. So, um, you know, health insurance is, it's confusing and it's tricky, but you know, and the insurance can't follow different rules in different states, at least from, from my understanding of it. So, um, I'm hopeful that we don't get something expansive and, and bad around nationwide injunctions. Do you know? But I think the other signal to me in terms of this case is how quickly and how committed to appealing this to the Supreme Court. The Trump administration was, and I think it just, it's another sign of what we already knew, but right that this administration is very committed to obstructing access to birth control services. And that's, you know, this case attacking the bar and the rules attacking the birth control benefit. It's everything that happened around the Title X rules and those cases undermining Medicaid through, you know, the block grants and or the block grant proposals and the work requirements, which thankfully have been, you know, very successfully challenged in court, but you know, at every place that they could try to undermine access to birth control. They really are. And so, you know, it's, it's part of his broader conservative agenda that aims to make it more difficult for women to be equal members of society. You know it, there are a number of cases and we're going to see these decisions coming out in June, probably end of June or, or potentially earlier about whether folks can be equal members of society and, and a lot of it state this term. So it's a lot to be paying attention to. And I know there's a lot going on for people right now, but you know, the, the court is still in session, still hearing these cases and you know, preparing opinions and others and it's important to be, to keep an eye on it and to know what's happening.

Jennie: Yeah. I mean there's some pretty major things happening this term with LGBTQ rights, trans rights in particular. And the abortion case, the Louisiana case that's up there. And, no, birth control. I mean there's, there's a lot.

Mara: And you know, I think the bottom line is, I think, at least in our case, you know, the Pennsylvania brief, Pennsylvania and New Jersey, his brief was really fantastic and I think did a really, really good job explaining why these rules, you know, were issued in a way that was illegal. Why Hobby Lobby and Zubik both necessitate that these rules can't, can't go into effect. But you know, that does not allay my concerns given the, the composition of the court. And, you know, I'm going to be very interested to see… because we're all going to have the opportunity to listen to oral arguments, which is actually kind of, I don't know, exciting. Um, but to, to hear what happens in oral arguments and then to, to ultimately to read, you know, in the opinions how that all plays out. I think, you know, Pennsylvania, New Jersey did a fantastic job and they've done a great job arguing these cases up, up through the courts. So, you know, I'm, I'm hopeful, but I'm also realistic about, you know, who's up there and who they're dealing with.

Jennie: Yeah. Okay. So with that, we usually end with what can listeners do? So is there anything listeners can do right now?

Mara: Yeah, well, so I would say, you know, we are having a digital rally at 3:00 PM on May 5th so if you are listening to this before 3:00 PM on May 5th you can RSVP and get the link. And that's going to be, you know, we typically, for folks in D.C. and folks sometimes come from other places on the day of a big oral argument, have a big gathering in front of the Supreme Court for oral arguments. Obviously we're not all gathering in one place right now, but we're really hopeful. But the digital rally can be a space that folks will, will feel some of that solidarity that we usually get when we're rallying together, but from the safety of their own home. So there's gonna be speakers, music, you know, there's gonna be ways for folks to, you know, make their own poster at home and share it with people. So we're, we're excited about that. And then I would also say, you know, for the live stream, if you're into that, right, like listening to the oral arguments, it's pretty unique that you can hear it, you know, at the same time that it's happening. And I think that is something, you know, a lot of folks have an interest in that becoming the norm for the court. That it's not just the few who get to be in the room, um, and hear it because it's not actually a very big room. Not many people get to be in there most of the time. So I think that's a great opportunity to listen. And I think the other thing just generally is, you know, in your conversations with people as you're having Zoom happy hour or you know, whatever it is that you're doing to connect with people, you know, talking about the case, talking about why birth control is important, making sure people know, but these cases are still happening. The court isn't just on whole pause because it really is all of our rights at stake, right? So the uh, you know, our right not to be discriminated against is at stake here and um, people should know that that's, that's really out there and it's really happening. So I would say, you know, do what you can and just know that a lot of us are here and working on it and we would love to have you join us in the rally that's in particular.

Jennie: So the one other thing I've been doing while everybody is trapped at home and never a lot of people are stressed is what is making you happy right now. So I'll start. I made a cherry chocolate loaf of bread this weekend and I have been having it like toasted in the oven every morning for breakfast. So it's been like melty chocolate deliciousness and it's has just made me very happy this week.

Mara: Oh that sounds delicious. I would say, and I would not have guessed if you had told me I was almost six weeks into being at home that this would have been the thing, but I have started running more. I typically would say I do not like running, but I'm finding now that it is like the most effective way to get some of the, you know, anxiety out of my body and I'm, I'm enjoying it, which is unexpected, but good. I'm happy about it.

Jennie: That's nice.

Mara: Yeah. And enjoying nature while I'm doing it. Right. That's part of it. I like seeing the spring flowers outside.

Jennie: Yeah. Yeah. Well Mara, thank you so much for doing this.

Mara: Of course, I'm always happy to join and, and you know, really love that you are putting all of this out there into the world for folks, so thank you.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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