Reproductive Justice

Introduction In the summer of 2022, as reproductive rights advocates mourned the demise of the constitutional right to abortion after Dobbs v. Jackson Women’s Health Organization ,[footnote]142 S. Ct. 2228 (2022).[/footnote] Walmart and other nationwide corporations announced they would cover some legally available abortion services and related travel under their health plans.[footnote]Haleluya Hadero, Walmart Expands Abortion Coverage for Employees, PBS (Aug. 19, 2022), https://www.pbs.org/newshour/economy/walmart-expands-abortion-coverage-for-employees [https://perma.cc/5ABE-V8D7]. Walmart’s expansion of its employee health plan covers abortion services for its employees when there is “a health risk to the mother, rape or incest, ectopic pregnancy, miscarriage or lack of fetal viability.” Id. (quoting a company memo sent to employees). Walmart’s plan also covers “travel support” for employees and dependents who must travel more than 100 miles to access those services. Id. For a discussion of legal issues raised by such abortion policies, see generally Brendan S. Maher, Pro-Choice Plans, 91 Geo. Wash. L. Rev. 446 (2023) [hereinafter Maher, Pro-Choice Plans].[/footnote] Walmart’s actions seem like a victory for reproductive freedom. Walmart is the largest private employer in twenty-one states[footnote]Nick Routley, Walmart Nation: Mapping America’s Biggest Employers, Visual Capitalist ( Jan. 24, 2019), https://www.visualcapitalist.com/walmart-nation-largest-employers/ [https://perma.cc/MQ24-AXD7].[/footnote] and employs 1.6 million people in the United States,[footnote]How Many People Work at Walmart?, Walmart, https://corporate.walmart.com/askwalmart/how-many-people-work-at-walmart [https://perma.cc/R8C4-FQAH] (last visited Jan. 18, 2024) (describing a total number of 1.6 million U.S. workers and a total global workforce of 2.1 million by the end of 2023).[/footnote] not including their employees’ spouses and dependents. The corporation is also based in Arkansas[footnote]Welcome to Walmart’s New Home Office in Bentonville, Arkansas, Walmart, https://corporate.walmart.com/about/newhomeoffice [https://perma.cc/UZX5-LJD4] (last visited Feb. 8, 2024).[/footnote]—a state that, after Dobbs , bans abortions with an exception to save the mother’s life, but not for rape or incest.[footnote]Human Life Protection Act, Ark. Code Ann. § 5-61-304 (2023).[/footnote] Walmart’s actions could well save some lives. Walmart’s decision surprised many, given the company’s significant financial contributions to state legislators responsible for enacting trigger laws, which became enforceable bans after Dobbs ,[footnote]See Janet Burns, Dear AT&T, Boeing, Pfizer, Comcast, Walmart, Etc: Stop Funding Abortion Attackers, Forbes (Aug. 21, 2019), https://www.forbes.com/sites/janetwburns/2019/08/21/dear-att-boeing-pfizer-google-comcast-stop-funding-abortion-attackers/ (on file with the Columbia Law Review ) (explaining Walmart’s contributions to the Republican State Leadership Committee and individual legislators who played a role in passing “extremely restrictive” abortion legislation).[/footnote] and its historically stingy approach to employee insurance coverage. For example, until 2010, Walmart had resolutely opposed providing insurance to its hourly workers, instead relying on state Medicaid programs to cover its lower-waged employees.[footnote]See Katie Sanders, Alan Grayson Says More Walmart Employees on Medicaid, Food Stamps Than Other Companies, PolitiFact (Dec. 6, 2012), https://www.politifact.com/factchecks/2012/dec/06/alan-grayson/alan-grayson-says-more-walmart-employees-medicaid-/ [https://perma.cc/QC36-ZRA4] (describing data sources showing percentages of Walmart employees on various public-benefits programs); see also Gov’t Accountability Off., GAO-21-45, Federal Social Safety Net Programs: Millions of Full-Time Workers Rely on Federal Health Care and Food Assistance Programs 9 (2020), https://www.gao.gov/assets/gao-21-45.pdf [https://perma.cc/E86M-F4PK] (providing data on the number of full-time workers on SNAP and Medicaid); Erin C. Fuse Brown & Elizabeth Y. McCuskey, Columbia Law Review ) (describing Walmart’s praise of a Fourth Circuit decision invalidating a state law that forced it to spend more on employee health care); Clare O’Connor, Report: Walmart Workers Cost Taxpayers $6.2 Billion in Public Assistance, Forbes (Apr. 15, 2014), https://www.forbes.com/sites/clareoconnor/2014/04/15/report-walmart-workers-cost-taxpayers-6-2-billion-in-public-assistance/ (on file with the Columbia Law Review ) (providing total costs of public benefits assistance to Walmart workers).[/footnote] After the Affordable Care Act (ACA) required that large employers offer health benefits to their employees or else pay a tax, Walmart dropped health benefits for many of its part-time workers because the mandate required coverage only for people working thirty hours or more per week.[footnote]David A. Graham, Walmart and the End of Employer-Based Health Care, The Atlantic (Oct. 7, 2014), https://www.theatlantic.com/politics/archive/2014/10/walmart-and-the-end-of-employer-based-health-care/381199/ (on file with the Columbia Law Review ) (describing Walmart’s and other large employers’ responses to the ACA’s employer mandate).[/footnote] Walmart’s limited expansion of abortion benefits in reaction to Dobbs is just one example in a long history of some private employers taking high-profile positions on reproductive health issues through their employees’ health insurance benefits.[footnote]See, e.g., Trina Jones, A Different Class of Care: The Benefits Crisis and Low-Wage Workers, 66 Am. U. L. Rev. 691, 692–93 (2017) [hereinafter Jones, A Different Class] (highlighting family leave policy press releases by Virgin and Netflix); see also Asees Bhasin, Business Responses to Dobbs : The Return to a “Reproductive Rights” Approach, and Suspicions Around Corporate Care, in Health Law as Private Law (Wendy Netter Epstein & Christopher Robertson eds., forthcoming 2024) (manuscript at 3–5) (on file with the Columbia Law Review ) (examining the motivations behind firms’ statements on Dobbs in the context of corporate social responsibility); Jennifer S. Fan, Corporations and Abortion Rights in a Post- Dobbs World, 57 U.C. Davis L. Rev. 819, 846–48 (2024) (detailing the strategic values and inconsistencies in corporate responses to Dobbs ).[/footnote] Hobby Lobby memorably fought against covering contraception under its employer health plan, culminating in Burwell v. Hobby Lobby Stores, Inc. in 2014.[footnote]573 U.S. 682 (2014).[/footnote] A private, for-profit craft store chain with over 43,000 employees across forty-seven states,[footnote]Our Story, Hobby Lobby, https://www.hobbylobby.com/about-us/our-story [https://perma.cc/JX38-MML5] (last visited Oct. 24, 2023); see also Hobby Lobby , 573 U.S. at 702.[/footnote] Hobby Lobby is owned by David and Barbara Green, Christians who object to abortion.[footnote] Hobby Lobby , 573 U.S. at 702–03 (discussing the Green family’s Christian faith and its influence on their business practices).[/footnote] Because the Greens believed that certain FDA-approved oral contraceptives and intrauterine devices (IUDs) effectively facilitated abortions, they refused to cover those offerings in their employee health plan.[footnote]Id. (explaining the Greens’ religious objections to the contraception mandate).[/footnote] The ACA required group plans to cover these contraceptives as “preventive care,”[footnote]42 U.S.C. § 300gg-13(a)(4) (2018); see also Women’s Preventive Services Guidelines, Health Res. & Servs. Admin., https://www.hrsa.gov/womens-guidelines [https://perma.cc/L5M8-R4PQ] (last visited Oct. 24, 2023) (detailing the ACA’s preventive-services mandate regarding women’s health).[/footnote] however, so the Greens challenged the enforcement of this provision.[footnote] Hobby Lobby , 573 U.S. at 703–04.[/footnote] Justice Samuel Alito’s majority opinion recognized the right of a closely held corporation to exercise its owners’ religious beliefs and thereby exempted Hobby Lobby from providing federally mandated contraception coverage.[footnote]Id. at 717, 736; see also Mary Agnes Carey, Hobby Lobby Ruling Cuts Into Contraceptive Mandate, NPR ( June 30, 2014), https://www.npr.org/sections/health-shots/2014/06/30/327065968/hobby-lobby-ruling-cuts-into-contraceptive-mandate [https://perma.cc/NHN5-3YHU]. A similar challenge by employers who object to covering pre-exposure prophylaxis (PrEP) medication to prevent HIV infection based on the company owners’ beliefs that PrEP encourages sexual behavior they consider immoral— Braidwood Management Inc. v. Becerra —is currently pending before the Fifth Circuit. 666 F. Supp. 3d 613 (N.D. Tex. 2023), appeal docketed, No. 23-10326 (5th Cir. Apr. 3, 2023); see also Michelle M. Mello & Anne Joseph O’Connell, The Fresh Assault on Insurance Coverage Mandates, 388 New Eng. J. Med. 1, 1–3 (2023) (discussing Braidwood ).[/footnote] Reproductive rights advocates might laud Walmart and loathe Hobby Lobby in these circumstances. But this Article exposes the real villain in these stories: the legal and regulatory infrastructure of health insurance in the United States, which grants employers wide latitude over access to reproductive health care and the health and autonomy of their employees. When Walmart wants to expand abortion coverage for its employees, the law allows it. When Hobby Lobby wants to avoid a federal statute requiring contraception coverage for its employees, the law allows that, too. When either company wants to exclude coverage for assisted reproduction, the law effectuates that choice.[footnote]See Karen Gilchrist, Egg Freezing, IVF and Surrogacy: Fertility Benefits Have Evolved to Become the Ultimate Workplace Perk, CNBC (Mar. 14, 2022), https://www.cnbc.com/2022/03/14/egg-freezing-ivf-surrogacy-fertility-benefits-are-the-new-work-perk.html [https://perma.cc/EW3N-Y6ZC] (last updated Oct. 4, 2022) (discussing how some, but not all, employers offer “fertility benefits” to their employees).[/footnote] This permissiveness is a problem for reproductive autonomy as well as the broader concept of reproductive justice, which encompasses the right to not reproduce and “also the right to have children and to raise them with dignity in safe, healthy, and supportive environments.”[footnote]Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (2015), https:// www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/G362-CXDL] [hereinafter Roberts, Reproductive Justice]; accord Rachel Rebouché, The Public Health Turn in Reproductive Rights, 78 Wash. & Lee L. Rev. 1355, 1431 (2021) (“Health justice and reproductive justice emphasize the limitations of strategies concerned only with the right to buy a service and support policies that lower or eliminate the costs of care, make child rearing more affordable, and address the country’s tattered healthcare system.”).[/footnote] Due to the prohibitively high cost of health care in the United States, employer-sponsored insurance is practically the gatekeeper for over 100 million people’s access to all kinds of health care, including reproductive services.[footnote]See How Much Does Health Insurance Cost?, Ramsey (Oct. 18, 2023), https://www.ramseysolutions.com/insurance/how-much-does-health-insurance-cost [https://perma.cc/YAZ7-8WHD] (showing that the cost of employer-sponsored insurance is significantly lower than that of market insurance); Michelle Long, Matthew Rae & Alina Salganicoff, Exclusion of Abortion Coverage From Employer-Sponsored Health Plans, KFF (May 12, 2020), https://www.kff.org/womens-health-policy/issue-brief/exclusion-of-abortion-coverage-from-employer-sponsored-health-plans/ [https://perma.cc/C3FC-CTW9] (noting that over 150 million employees receive diverse employer-sponsored insurance benefits, including reproductive health care).[/footnote] Uninsurance and underinsurance remain entrenched problems that inhibit access to health care services generally and stymie the human flourishing and social benefit that effective care can enable.[footnote]See J.P. Ruger, The Moral Foundations of Health Insurance, 100 QJM 53, 55–56 (2007) (advancing a moral argument for universal health insurance); Sara R. Collins, Lauren A. Haynes & Relebohile Masitha, The State of U.S. Health Insurance in 2022, Commonwealth Fund (Sept. 29, 2022), https://www.commonwealthfund.org/publications/issue-briefs/2022/sep/state-us-health-insurance-2022-biennial-survey [https://perma.cc/Y7GA-U87U] (noting that forty-three percent of adults were inadequately insured in 2022).[/footnote] Access to reproductive care is particularly important because it can have acute consequences for individuals’ physical and mental health, financial security, participation in society, and self-determination, as the reproductive justice movement directly recognizes.[footnote]See, e.g., Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 9–10 (2017) (noting the importance of reproductive access to human flourishing and social well-being).[/footnote] As the primary source of third-party funding during most people’s reproductive years, employers play a dominant role in this especially profound aspect of human health and flourishing and, on the whole, have made very few shifts in response to Dobbs .[footnote]See Jessica L. Roberts, An Alternate Theory of Burwell v. Hobby Lobby , 22 Conn. Ins. L.J. 85, 86 (2016) [hereinafter Roberts, An Alternate Theory] (explaining how the necessity of insurance and the prominence of employer-sponsored insurance render employers “de facto health-care policy makers”); Michelle Long, Matthew Rae, Alina Salganicoff & Laurie Sobel, Coverage of Abortion in Large Employer-Sponsored Plans in 2023, KFF (Feb. 29, 2024), https://www.kff.org/womens-health-policy/issue-brief/coverage-of-abortion-in-large-employer-sponsored-plans-in-2023/ [https://perma.cc/8489-MWR4] (finding that the “vast majority” of firms whose plans excluded abortion coverage pre- Dobbs continue to do so, that only twelve percent of large firms that covered abortion pre- Dobbs have made any expansions since the ruling, and that only seven percent of large firms offer abortion travel coverage).[/footnote] This Article proceeds in three parts: First, it lays out the legal infrastructure that gives employers discretion in covering reproductive care; second, it exposes the power dynamics that put employer-sponsored insurance at odds with reproductive justice; and finally, it interrogates a range of reforms that could decouple the funding of reproductive care from employers. Part I details the legal landscape that gives employers near-complete discretion over the coverage of reproductive care.[footnote]See Katherine Keisler-Starkey & Lisa N. Bunch, U.S. Census Bureau, Health Insurance Coverage in the United States: 2020, at 3–4 (2021), https://www.census.gov/content/dam/Census/library/publications/2021/demo/p60-274.pdf [https://perma.cc/UYE9-STAR] (stating that 54.4% of the population—nearly 178 million people—received employer-sponsored insurance).[/footnote] Employer-sponsored insurance coverage for reproductive health services varies widely based on the size and type of the employer institution and its plan design choices. The variation is made possible by a complex legal infrastructure that mostly insulates employers’ discretion over the extent of coverage for reproductive care.[footnote]See infra section I.A.[/footnote] Reproductive exceptionalism[footnote]E.g., Courtney Megan Cahill, Reproductive Exceptionalism in and Beyond Birth Rights , 100 B.U. L. Rev. Online 152, 152–53 (2020), https://www.bu.edu/bulawreview/files/2020/07/CAHILL.pdf [https://perma.cc/8KW4-EK69] (offering examples of reproductive exceptionalism in the law).[/footnote]—the practice of lawmakers and regulators treating reproductive services differently from other medical care—infuses insurance regulation, giving both public and private employers greater leeway to restrict coverage for reproductive care than other medical services.[footnote]See infra section I.A.[/footnote] Statutory and constitutional accommodations for religion widen the holes in coverage by exempting religious institutions—and even secular for-profit businesses such as Hobby Lobby—from certain coverage mandates.[footnote]See infra notes 96–98 and accompanying text.[/footnote] Federal antidiscrimination statutes and state and local laws constrain discretion, but in limited ways that may sometimes give way to religious objections.[footnote]See Off. for C.R., Protection From Discrimination in Reproductive Health Care, HHS, https://www.hhs.gov/civil-rights/for-individuals/special-topics/reproductive-healthcare/index.html [https://perma.cc/2VVL-Z3XB] (last visited Oct. 24, 2023) (describing the ways that federal civil rights laws prohibit pregnancy discrimination).[/footnote] Public-sector employers, responsible for covering thirty-seven million people in the United States, are exempt from many of the regulations governing commercial insurance and so have even wider latitude to choose which services to cover.[footnote]See infra notes 203–221.[/footnote] These many loopholes and forces of exceptionalism have relegated the provision of reproductive care into separate funding and separate clinical settings, most apparently through treatments paid for by patients out of pocket,[footnote]See Gabriela Weigel, Usha Ranji, Michelle Long & Alina Salganicoff, Coverage and Use of Fertility Services in the U.S., KFF (Sept. 15, 2020), https://www.kff.org/womens-health-policy/issue-brief/coverage-and-use-of-fertility-services-in-the-u-s/ [https://perma.cc/AN2T-DTFQ] (“Most patients pay out of pocket for fertility treatment . . . .”).[/footnote] Title X federally funded family-planning clinics, Planned Parenthood clinics, and privately funded independent abortion clinics.[footnote]See, e.g., Usha Ranji, Alina Salganicoff, Laurie Sobel & Ivette Gomez, Financing Family Planning for Low-Income Women: The Role of Public Programs, KFF (Oct. 25, 2019), https://www.kff.org/womens-health-policy/issue-brief/financing-family-planning-services-for-low-income-women-the-role-of-public-programs/ [https://perma.cc/9YHG-SS5M] (describing a patchwork of clinical settings that distribute reproductive services).[/footnote] Dobbs further complicated the intricate legal landscape by allowing states to ban the provision of abortion care, even when insurance covers it.[footnote]See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2259 (2022) (entrusting abortion regulation “to the people and their elected representatives”).[/footnote] This patchwork sows chaos for reproductive care access broadly,[footnote]See Nicole Huberfeld, High Stakes, Bad Odds: Health Laws and the Revived Federalism Revolution, 57 U.C. Davis L. Rev. 977, 1001 (2023) (“[T]he variety of state actions in the wake of Dobbs have created chaos, conflict, and confusion . . . .”).[/footnote] including for employer plans that already covered aspects of abortion care. Employers typically design their plans to promise coverage for one year at a time, beginning on January 1 of the next year.[footnote]See Lacie Glover, Open Enrollment for Health Insurance, NerdWallet (Oct. 18, 2019), https://www.nerdwallet.com/article/health/health-insurance-open-enrollment [https:// perma.cc/TX7N-GBHR] (noting that coverage usually lasts for a full calendar year); see also When Can I Enroll in My Employer Health Plan?, KFF, https://www.kff.org/faqs/faqs-health-insurance-marketplace-and-the-aca/when-can-i-enroll-in-my-employer-health-plan/ [https://perma.cc/MZ66-V3ZY] (last visited Oct. 24, 2023) (explaining the open-enrollment process).[/footnote] When the Supreme Court formally issued the Dobbs opinion on June 24, 2022,[footnote] Dobbs , 142 S. Ct. at 2228.[/footnote] state trigger laws immediately went into effect, and new bans quickly followed, forcing employers and insurers to consider the immediate impacts on their coverage in the middle of a plan year and to calibrate their responses.[footnote]See, e.g., Tara Siegel Bernard, Abortion Insurance Coverage Is Now Much More Complicated, N.Y. Times ( July 12, 2022), https://www.nytimes.com/2022/07/12/your-money/health-insurance/abortion-health-insurance-coverage.html (on file with the Columbia Law Review ) (charting the impact of Dobbs on insurance benefits for abortions); Greg Ash & Laura Fischer, How the Dobbs Decision Will Impact Benefit Plans and Sponsors, ALM BenefitsPro ( July 21, 2022), https://www.benefitspro.com/2022/07/21/how-the-dobbs-decision-will-impact-benefit-plans-and-sponsors/ [https://perma.cc/MXH7-6E3D] (detailing the decisions that plans need to make in response to Dobbs ).[/footnote] For those in states that further restricted or criminalized abortion, employer plans that covered some abortion services had to determine whether and how to expand coverage to account for the additional travel and leave required to access those services across state lines[footnote]See, e.g., Shea Holman & Hannah Naylor, The Dobbs Decision: Emerging Trends in Corporate Response, Purple Campaign ( July 21, 2022), https://www.purplecampaign.org/purple-post/2022/7/20/the-dobbs-decision-emerging-trends-in-corporate-response [https://perma.cc/X7EL-LGEB] (tracking public corporate responses to Dobbs ).[/footnote] as well as how to safeguard their claims data, lest those data potentially implicate employees or administrators.[footnote]See HIPAA Privacy Rule and Disclosures of Information Relating to Reproductive Health Care, HHS ( June 29, 2022), https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/phi-reproductive-health/index.html [https://perma.cc/XB4N-YLJN] (describing the HIPAA provisions that safeguard disclosures of reproductive services).[/footnote] Part II explores employers’ coverage decisionmaking, revealing how coverage of reproductive benefits is informed by employers’ business and personal interests rather than their employees’ reproductive autonomy. Firms’ incentives frequently misalign with the robust coverage of reproductive services. Companies perceive pregnancy as costly and disruptive, pointing to lost productivity and the need to accommodate pregnant workers.[footnote]See infra section II.A.1.[/footnote] Pregnancy also increases employers’ insurance premiums; childbirth is one of the costliest medical procedures for employers annually and results in more dependents for the plan to cover.[footnote]See infra notes 236–239 and accompanying text.[/footnote] But employers have also resisted covering contraception for decades[footnote]See, e.g., Sylvia A. Law, Sex Discrimination and Insurance for Contraception, 73 Wash. L. Rev. 363, 368–72 (1998) (describing the historical responses to contraception coverage by employers).[/footnote]—long before Hobby Lobby publicly took its fight to the Supreme Court. When employers refuse to cover reproductive care, they externalize the costs of that care onto public programs or the employees themselves. Although employers’ interests may at times align with some employees’ choices, this interest convergence is fragile and ultimately subordinates individuals’ choices to the dominant forces of an entity’s commercial interests. Decoupling health care from employment would begin to remedy this subordination, which contradicts reproductive justice.[footnote]See Ross & Solinger, supra note 22, at 8, 93 (introducing the reproductive justice framework). [/footnote] Other health benefits models, including public programs like Medicaid, also impose burdens on reproductive justice and may carve such care out of their ambit. Yet employers pose a greater threat to reproductive justice given the power they exert over employees and their various conflicts of interest. Part III offers tough but essential considerations for the future of health reform if it is to meaningfully support reproductive justice. Public-option and single-payer reforms would directly decouple employers from reproductive care access by placing health care coverage in the hands of government officials. Based on how federal and state governments already act in their capacity as employers and insurers, however, the outlook for reproductive justice is still bleak. As an insurer, the federal government has long excluded abortion from coverage in its employee benefits plan.[footnote]See Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, KFF (Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/3SY3-D8U7] [hereinafter Salganicoff et al., Hyde Amendment] (describing the federal Hyde Amendment).[/footnote] Through the Hyde Amendment, the federal government has also avoided paying federal funds toward abortions for almost fifty years, and politicians have constantly raised objections to abortion funding, even by stymieing measures unrelated to health care.[footnote]See, e.g., Karoun Demirjian, Tuberville Blockade Over Abortion Policy Threatens Top Military Promotions, N.Y. Times ( July 10, 2023), https://www.nytimes.com/2023/07/10/us/politics/tuberville-abortion-joint-chiefs.html (on file with the Columbia Law Review ) (describing Alabama Senator Tommy Tuberville’s decision to block hundreds of military promotions until the DOD scraps its policy offering time off and travel reimbursement to service members traveling out of state for abortions).[/footnote] Though some states reject Hyde and cover the full range of reproductive care for their employees, a majority have enacted their own Hyde-style restrictions.[footnote]See State Funding of Abortion Under Medicaid, Guttmacher Inst., https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid [https://perma.cc/PHY7-8SCP] (last updated Aug. 31, 2023) (providing an overview of state abortion funding in all fifty states).[/footnote] Any plan that places funding discretion in the hands of the government—or any third-party payer—must contend with this reality. The direct-care model already serves as an alternative to traditional insurance-based, third-party funding. In direct care, the funding flows from the funder directly to the provider without a claims processor or insurance contract as an intermediary. Thus, providers receive payment (or salary) to treat whatever patients they serve, for whatever services fall within their scope of practice. For example, Title X clinics provide patients with nonabortion family-planning services, directly funded by federal grants.[footnote]See Angela Napili, Cong. Rsch. Serv., IF10051, Title X Family Planning Program, https://crsreports.congress.gov/product/pdf/IF/IF10051 [https://perma.cc/L7CP-LMNF] (last updated June 8, 2023) (describing the prohibition on the use of Title X funds for abortion).[/footnote] Planned Parenthood and other independent private clinics, meanwhile, provide a fuller range of services, including abortion, using private funding (typically from nonprofit organizations).[footnote]See Abortion Care Network, Communities Need Clinics: The New Landscape of Independent Abortion Clinics in the United States 3 (2022), https://abortioncarenetwork .org/wp-content/uploads/2022/12/communities-need-clinics-2022.pdf [https://perma.cc/W8G6-8V8L] (noting that hospitals and physician practices account for only four percent of all abortion procedures provided in the United States and that Planned Parenthood and independent clinics provide the rest).[/footnote] Privately funded direct care largely removes the intervening influence of employers and political actors, but it nonetheless reflects and perpetuates the reproductive exceptionalism that undermines autonomy by isolating and treating differently from any other medical service the financing of reproductive care. Using the framework of confrontational incrementalism,[footnote]See Lindsay F. Wiley, Elizabeth Y. McCuskey, Matthew B. Lawrence & Erin C. Fuse Brown, Health Reform Reconstruction, 55 U.C. Davis L. Rev. 657, 665 (2021) [hereinafter Wiley et al., Health Reform Reconstruction] (explaining the concept of confrontational incrementalism as applied to health policy).[/footnote] this Article assesses whether the incremental changes that appear most feasible actually advance or thwart the ends of reproductive justice. This framework counsels that incremental reforms should be assessed based not just on their feasibility but ultimately on whether each increment also confronts the sources of subordination and inequity or accommodates them.[footnote]See id.[/footnote] Applied to the reproductive health insurance context, the assessment compares the impacts on reproductive justice of incremental reforms that would merely constrain employer discretion in the current system with measures that would instead supplant employers’ influence over health care funding and establish universal public programs.[footnote]See infra Part III.[/footnote] The assessment further compares the potentially subordinating influences of private health care funding reforms and government funding reforms.[footnote]See infra Part III.[/footnote] Applying these perspectives to recent experiences with state-level single-payer proposals, the Article concludes by observing some narrow openings for eroding reproductive exceptionalism to advance reproductive justice and by arguing that achieving universal care reforms that are feasible, durable, and equitable may require an embrace of reproductive justice.

Reproductive Justice

EMPLOYER-SPONSORED REPRODUCTION

BEYOND TORTS:
REPRODUCTIVE WRONGS AND THE STATE