If allowed to take effect, the Trump administration's birth control rules would hit especially hard in the Asian American and Pacific Islander (AAPI) community.
This piece was published by Rewire on January 28, 2019.
OiYan Poon, a former professor at Loyola University Chicago, distinctly remembers the shock and fear she felt when Loyola informed her in 2014 that it would no longer provide birth control coverage as part of its health-care plan, which covered hundreds of individuals across the campus.
While the Affordable Care Act (ACA) required employers to provide contraceptive coverage without a co-pay, religious nonprofits could opt out of the requirement on the basis of their religious objections. Loyola, a Catholic and Jesuit university, had decided to opt out. Loyola employees were informed that they could receive birth control coverage directly from the insurance company that provided Loyola’s health insurance, but the types of birth control that were fully covered were much more limited. Poon’s medication was not on the list of ones that were covered. This left her torn: Should she stay on the university’s health-care plan and either change her birth control method or pay out of pocket for the one she was using, or transition to her spouse’s plan?
Poon decided to stay on the university’s plan, as she and her partner chose to start a family around that time—but she continued to feel the effects of Loyola’s policies, which were influenced by its religious views. While trying to get pregnant, Poon miscarried during the first trimester and needed to have a procedure done to remove the tissue. During this emotional time, she was forced to endure repeated intrusive questions from an insurance company representative who insisted on verifying the purpose of the procedure to make sure it aligned with the employer’s coverage.
Poon’s story illustrates the harm that many women will likely experience if the Trump administration’s new birth control coverage rules are permitted to take effect. Thanks to federal judges, the rules have been temporarily blocked, but that doesn’t mean our worries are over. The administration appears more than willing to continue trying to take away our birth control access until it succeeds.
While the Supreme Court’s decision in Burwell v. Hobby Lobby allowed privately-held companies with religious objections to refuse to cover birth control for their employees, the Trump administration’s new rules would vastly expand the number of employers that can do so. As a result, the rules threaten access to birth control for many of the 62 million people who now have birth control coverage without out-of-pocket costs because of the ACA birth control benefit. If the rules are allowed to go into effect, it will mean even less access to affordable birth control and increased health risks for women. And for women of color, LGBTQ people, young women, and immigrant women who already face health disparities and numerous barriers to accessing birth control, the risk of harm is even greater.
This is why we at the National Asian Pacific American Women’s Forum are fighting these rules. With other reproductive justice and rights organizations, we have filed amicus briefs in cases challenging these rules to inform courts of the serious harm that these rules could cause people facing multiple and intersecting oppressions. It is vital for courts to understand that the harm will be compounded by inequalities and disparities shaped by historical and ongoing oppression and discrimination against women of color and other groups.
Cases to Watch: Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of Indiana State Department of Health
Currently under consideration for review by the Supreme Court is a case from the Seventh Circuit, Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of Indiana State Department of Health, in which the plaintiff has challenged an Indiana law that would make it a crime (and impose civil liability) for a provider to perform or attempt to perform an abortion where the reason for the abortion is based on the sex, disability, or race of the fetus.* These types of abortion bans are often referred to as “reason-based bans” or “reason bans.” The district court found in favor of the plaintiff and the Seventh Circuit affirmed, finding that the reason bans were complete bans on pre-viability abortions and, thus, unconstitutional under Roe and its progeny. If taken up by the Court, it will be the first time the Supreme Court considers reason-based bans on abortion.
The case is critical because the state of Indiana is arguing that its reason bans do not implicate Roe and its progeny, in an attempt to further gut the right to abortion under Roe. There is no question that our fundamental rights are at stake if the Supreme Court agrees to grant review.
However, missing from the arguments in the case and the overall considerations of the court is the harmful impact of sex and race-selective abortion bans on people of color, including Asian American and Pacific Islander (AAPI) women and girls. These bans are based on, as well as perpetuate, harmful stereotypes about women of color and encourage providers to suspect and racially profile women of color when they seek reproductive care.
Specifically, sex-selective abortion bans are predicated on negative stereotypes that AAPI women, particularly AAPI immigrant women, hold cultural values of male preference and gender bias and are therefore engaging in sex-selective abortions. Proponents of these bans have relied on anti-immigrant rhetoric, suggesting that Asian immigrant women are importing “backwards” values and that these laws are necessary to “protect Americans” against these values.
At base, sex-selective abortion bans send the message that AAPI women can not be trusted to make their own reproductive choices. By threatening penalties against providers, these bans also encourage providers to racially profile AAPI women for their reproductive health decisions, adding yet another barrier to reproductive health care for AAPI women.
On October 10, 2018, the Supreme Court heard argument in a critical case on immigration detention: Nielsen v. Preap. At issue in this class action brought on behalf of immigrant detainees is the meaning of the word “when” in a provision of the federal immigration statute that requires the mandatory detention (that is, detention in ICE custody with no possibility of release while removal proceedings are pending) of certain immigrants “when” they are released from criminal detention. The broader issue is whether ICE can detain an immigrant that it did not detain immediately upon the immigrant’s release from criminal detention. The plaintiffs argue that the mandatory detention provision should be interpreted to exclude immigrants who were not immediately detained upon release from criminal detention. The government argues that these immigrants are not excepted and that the government can detain them at any time after they are released from criminal detention. This distinction is critical for plaintiff Mony Preap and many other immigrants who were long ago released from criminal custody, sometimes for very minor crimes, and returned to their communities -- where they have built lives, families, and homes and contributed to their communities for years -- and who are now being detained by the government and held without any possibility of release while removal proceedings are pending.
by the NAPAWF Legal Team
AP(Eye) on the Courts is our law blog written by NAPAWF’s legal team. The blog highlights and discusses significant legal cases and updates, particularly those that impact AAPI women and women of color regarding reproductive, immigrant, and economic justice.