One of the highest profile issues involving the use of religion to deny women healthcare centers around insurance coverage for contraception. It has been the focus of two recent Supreme Court decisions and continues to be the subject of court cases and policy debates.
At issue are the Affordable Care Act (ACA) regulations that require most health insurance plans, including plans provided by employers, to cover all FDA-approved methods of contraception with no co-pay. This policy was adopted to improve access to birth control, which is vital to women’s health and equality. Nonetheless, some for-profit corporations and religiously affiliated institutions have refused to provide this coverage, claiming that it violates their religious freedom.
We have been fighting and will continue to fight for our neighbors, arguing that for-profit corporations and religiously affiliated institutions should not be allowed to use religion as a reason to deny contraception coverage to their employees. Failure to provide this coverage threatens the equality and health of employees—most often women.
The ACA Regulations
The regulations exempt houses of worship from the rules governing insurance coverage for contraception. But many religiously affiliated institutions (including some prominent universities) and owners of for-profit corporations argued that they too should be exempt from providing this coverage because of their religious beliefs.
In response, the government created an accommodation for non-profit entities with religious objections. Under this accommodation, non-profit organizations need only complete a short form to opt out of providing contraception coverage, and the government will work with third-party insurance companies to provide the coverage at no cost to affected women. Yet attacks on contraception coverage persist as some non-profits argue that even having to request the opt-out burdens their religious exercise. This has led to numerous changes to the regulations, litigation, and proposed legislation. We submitted public comments on each of these proposed regulatory changes.
Burwell v. Hobby Lobby Stores
In Burwell v. Hobby Lobby Stores, for-profit corporations argued that providing insurance coverage for contraception to their employees violated their owners’ religious freedom. Unfortunately, the Supreme Court agreed, ruling that for-profit corporations could invoke the Religious Freedom Restoration Act (RFRA) to refuse to provide otherwise required employee benefits—in this case, insurance coverage for contraception.
We filed over a dozen briefs responding to the challenges brought by for-profit corporations that culminated in the U.S. Supreme Court case. And at the Supreme Court, we filed a brief defending the contraception coverage regulations, on behalf of nearly 30 religious organizations, arguing that religious freedom has never included the right for business owners to impose their religious beliefs on others.
Learn more about Burwell v. Hobby Lobby Stores.
Zubik v. Price, University Of Notre Dame, And Other Non-Profit Challenges
Non-profit organizations challenged the religious accommodation that allows religious entities to refuse to provide their students and employees with insurance coverage for contraception. Under the accommodation, an entity needs only state its objection in writing, and the government will arrange for a third-party to pay for and provide the coverage instead. Remarkably, many entities have challenged this accommodation in court—insisting that the mere act of requesting it violates their religious freedom.
We represent students in one of the challenges, brought by the University of Notre Dame . This is the only contraception case in which women whose coverage is at risk are actual parties to the case.
We have also filed briefs opposing over a dozen of other challenges brought by non-profit organizations.
In March 2016, the Supreme Court heard arguments in the challenges by non-profit organizations. 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 religiously affiliated institutions. In May 2016, the Supreme Court issued an opinion that essentially took a pass on dealing with the important question of access to birth control, an action that leaves tens of thousands of women in limbo and at risk of losing contraceptive coverage. The Supreme Court sent the cases back to the lower courts. Unfortunately, no resolution has been reached. The religiously affiliated non-profits wanted to get rid of the contraception insurance mandate or get an exemption like houses of worship. The Obama administration refused to give in to these demands and protected access to birth control for employees at these organizations. But, the contraception coverage rule itself may now be in danger from the Trump administration and Department of Health and Human Services Secretary Tom Price. In fact, a leaked contraception coverage regulation initiated by President Trump's 2017 "religious freedom" executive order would allow any employer or university, even for-profit corporations, to cite religious or “moral” objections to get out of the Affordable Care Act's (ACA) requirement that health insurance plans cover birth control with no co-pay. There’s no backup plan. Under the Trump proposal, if the boss or university refuses to cover contraception, the cost shifts to employees and students.
Insurance coverage for contraception has been at issue in legislation in the states and Congress.
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