Why Zubik is Especially Important for Women of Color


From the forced breeding of slave women, to the eugenics movement of the 1920s to a relatively recent campaign to sterilize incarcerated women, the institutional denial of women of color’s reproductive freedom has left many mistrustful of medical institutions and the government’s attempts to interfere with their reproductive choices. This has led, in turn, to poor health and political disengagement amongst communities of color. Now, the Supreme Court’s decision in Zubik v. Burwell may effectively strip thousands of women of color of their right to no-cost insurance coverage for contraception.

For those not following the case, Zubik is a challenge to the Affordable Care Act’s contraceptive mandate, which requires certain employer-sponsored health insurance plans to cover contraception with no co-pay. The Obama administration has already created an accommodation for religious non-profits opposed to birth control, which allows them to opt-out of paying for contraceptives while maintaining insurance coverage for their employees. The organizations suing in Zubik, however, want to prevent their employees from receiving coverage through the plans at all. They claim that under the Religious Freedom Restoration Act (RFRA), they are entitled not just to refuse to pay for birth control themselves, but to demand that their insurance providers refuse to offer it.

While religious organizations employ women of all backgrounds, the Zubik case should be particularly concerning to women of color. Lack of access to quality reproductive health care plays a large role in the overall health disparities faced by communities of color today. Women of color have the highest rates of unintended pregnancy, abortion, and maternal mortality, all of which have taken a toll on the psychological, economic, and social vitality of these communities.

Moreover, as abortion clinics across the country close due to the conservative attack on abortion rights, women of color are harmed disproportionately. Clinic closings make it especially hard for low-income women and women of color to get an abortion, since many cannot afford to travel the long distances needed to reach a clinic. A recent New York Times article found that clinic closings appear to be closely linked to the uptick in searches for illegal, self-induced abortion.

In addition, women who have unintended pregnancies are more likely to abuse substances while pregnant and less likely to seek prenatal care, which can negatively impact the health of the fetus. Some unintended pregnancies 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 rate is actually increasing. These numbers are even bleaker for women of color in the U.S., where black women are four times more likely than white women to die in childbirth.

The pervasive health disparities among communities of color can be traced back, in part, to a long legacy of reproductive coercion. In 2003, the Institute of Medicine produced a study about the causes of racial health disparities in America. It found that many of the disparities are rooted in historic and current racial inequalities, including poor socio-economic conditions as well as implicit biases held within the medical community that lead to subpar treatment.

Eliminating the disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and contraceptive counseling. Access to contraception allows women of color to plan whether and when they have a child, which provides them with greater financial stability and freedom. Women of color, on average, earn significantly less than white women, and many cannot afford to pay for quality contraception.

The IUD, for example, is considered the most effective contraception available on the market today, but because it costs between $500 to $1000 only 6% of black women have used IUDs compared with 78% who have used birth control pills. Providing women of color with access to no-cost contraceptive coverage is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.

It should be no 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, the Institute included contraceptive care and counseling in their recommendations, two services that can help right some of the wrongs done to women of color in the area of reproductive justice and liberty. It would be a grave injustice for the Supreme Court to allow the plaintiffs in Zubik—and others who might follow in their wake—to take us one step back.