Under an Affordable Care Act policy, most insurance plans must cover contraception. But for-profit corporations (like Hobby Lobby) and non-profit institutions (including prominent universities) have argued that the policy should not apply to them because they have religious objections to providing the coverage to their employees and students.
Now, new Trump administration regulations let bosses and universities use religion to deny their employees and students access to contraception.
Religion is not an excuse to allow these organizations to deny women access to healthcare. We have fought back in dozens of cases, including a lawsuit challenging the Trump administration rules.
From the beginning, houses of worship have been given an exemption from the general rule that health insurance plans must cover contraception. Houses of worship do not have to (and have never had to) provide their employees insurance coverage for contraception. In addition, religiously affiliated non-profit institutions, including universities, were provided with an accommodation to the coverage requirement. They could have refused to provide their students and employees with insurance coverage for contraception so long as they stated their objection in writing. The government would have then arranged for a third-party to pay for and provide the coverage instead.
The Trump administration regulations create a sweeping exemption and now any employer or university can use religion as an excuse to deny its students or employees insurance coverage for birth control.
Challenges By For-Profit Corporations
The owners of for-profit corporations filed dozens of cases challenging the coverage requirement, arguing that they were also entitled to an exemption because providing contraception coverage for their employees violated their religious beliefs. One of the cases, Burwell v. Hobby Lobby Stores, ended up at the Supreme Court. We filed over a dozen briefs in those cases, and in the Supreme Court, we filed a brief on behalf of nearly 30 religious organizations, arguing that religious freedom has never included the right to deprive other people of their rights.
Unfortunately, the Supreme Court ruled that for-profit corporations could invoke the Religious Freedom Restoration Act (RFRA) to refuse to provide otherwise required health benefits—in this case, insurance coverage for contraception—based on their owners’ religious beliefs.
In response, the government extended the accommodation to closely held corporations.
Learn more about Burwell v. Hobby Lobby Stores.
Challenges By Non-Profit Organizations
The accommodation failed to appease many non-profit institutions, including universities, and dozens of these groups challenged it in court. They argue that the mere act of filling out a form—a form relieving them of the need to comply with the policy—violates their religious freedom. They want a full exemption that strips their employees and students of contraception coverage altogether. We filed briefs in most of these cases, and in one case, University of Notre Dame v. Price, we represented students whose coverage was at risk.
Nearly every court of appeals rejected the non-profit organizations’ argument and upheld the accommodation. The Supreme Court, in Zubik v. Price, however, side-stepped the issue and instead sent all the cases back down to the lower courts and urged them to consider other possible accommodations. We filed a brief in Zubik on behalf of 240 students, faculty, and staff at religiously affiliated universities, discussing the importance of providing contraceptive coverage to those who work or study at these institutions.
After requesting information from the public, the Obama administration concluded that there was no feasible alternative accommodation. Unfortunately, no resolution has been reached and the employees' and students' access to contraception remains in limbo. New Trump administration regulations will add even more uncertainty to the issue.
We fought on behalf of students in University of Notre Dame v. Price, to make sure they—and all women like them—have affordable, seamless access to contraception.
Challenges To The Trump Administration Regulations
In May 2017, President Trump signed a "religious freedom" executive order aimed in part at attacking women’s access to birth control. The executive order started the process to roll back the Affordable Care Act’s contraception coverage rule. In October 2017, the Trump administration issued regulations that created a sweeping religious exemption—any corporation or university can use religion to deny their employees and students coverage for birth control.
In October 2017, Americans United and the National Women’s Law Center filed Shiraef v. Hargan, a lawsuit challenging the Trump administration’s contraception coverage rules. We represented women at risk of being denied birth control coverage, including University of Notre Dame students. Barely a week after we filed the case, Notre Dame reversed course on its plan to take advantage of the Trump administration rules, announcing instead that employees and students would continue to have contraceptive coverage. Because these women were promised access to birth control at the time, they decided they didn’t need to continue their lawsuit.
Then, in February 2018, Notre Dame reversed course again after signing an illegal settlement agreement with the Trump Administration. Notre Dame announced that it would stop covering certain forms of contraception for 17,000 students, employees, and their families. The Trump Administration and university bargained away these women’s rights, but we’re not going to let them get away with it.
AU and NWLC sent a demand letter to the university and filed a Freedom of Information Act seeking information about the settlement and the school’s contraceptive coverage for its employees and students.
On June 26, 2018, Americans United, the National Women’s Law Center, the Center for Reproductive Rights, and Macey Swanson LLP, challenged the illegal settlement on behalf of a group of Notre Dame students. These students aren’t afraid to fight back and say that denying women access to contraception in the name of religion is discrimination, plain and simple.
Our fight isn’t limited to just our own cases. Several states have also challenged the Trump administration’s discriminatory policy. We are filing friend-of-the-court briefs in these cases with religious and civil rights organizations to explain that religious freedom doesn’t give anyone the right to dictate women’s health care.
In December 2017, we also filed public comments to tell the Trump Administration that these new rules harmed women and were unconstitutional. And we joined our allies to deliver over 500,000 comments from people across the country—including Americans United supporters—who also think that attacking women’s access to healthcare is wrong.
We will continue to fight efforts to use religion to undermine women’s access to access to contraception. Women’s health and equality and religious freedom are at stake.