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Birth Control Returns To The High Court: SCOTUS To Hear New Challenge To Obamacare’s Contraceptive Coverage

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For the fourth time in three years, the U.S. Supreme Court has agreed to hear a series of challenges to the Affordable Care Act. And for the second time, the target is birth control coverage.

The Justices announced Friday that they would review a group of seven cases, brought by religiously affiliated nonprofits, all of which challenge the compromise accommodation process for complying with the Affordable Care Act’s birth control benefit. At the heart of these challenges is the issue of just how far employers may go to cut off their employees’ access to the contraceptive coverage they are entitled to receive under the law.

The Affordable Care Act requires that all insurance plans cover certain essential preventive health care services, including all forms of FDA-approved contraception, at no additional cost to the policyholder. The law already fully exempts religious institutions like churches, temples, and mosques, but not religiously-affiliated nonprofit employers such as Catholic universities or hospitals. However, the Obama administration has gone out of its way to accommodate such employers, offering a compromise arrangement that essentially removes the employer from the insurance process altogether.

Under the accommodation, religious non-profits that object to the health care law’s contraceptive coverage can simply fill out a brief form, or send a letter to the government, announcing that they object to offering birth control and disclosing the name of their insurance administrator so the administration can work around the employer and provide a wholly separate policy for workers who want birth control. At that point, a third-party administrator is responsible for providing birth control coverage directly to the employee, with no involvement of the employer or organization.

After the Supreme Court’s 2014 ruling in Burwell v. Hobby Lobby, the same accommodations were offered to for-profit, nonreligious businesses who have religious objections to certain forms of birth control. (Some organizations object to morning-after pill and IUDs, while others object to all forms of birth control.) When the Hobby Lobby majority placed religious belief above the health needs of nonreligious employees, one of its rationales was the existence of what it considered a reasonable accommodation process—an alternate method to cover birth control—that it said should be made available to for-profit businesses like Hobby Lobby, as well.

“The court, I fear, has ventured into a minefield…”

But now, the Supreme Court has agreed to take up a series of seven cases that challenge the very accommodation process they deemed to be reasonable in their 2014 ruling. All the cases involve the 1993 Religious Freedom Restoration Act, which bars the government from substantially burdening religious freedom unless it furthers “a compelling governmental interest” and “is the least restrictive means” of doing so. The plaintiffs, a mix of religious non-profits, claim that the simple act of filling out paperwork is a violation of their religious freedom.

As RH Reality Check explains:

Those organizations argue that the task of completing the government’s form that self-certifies them as religious employers—and makes them eligible for an accommodation to the benefit—“triggers” or “facilitates” the ability of their employees to get contraceptive coverage elsewhere. That, the plaintiffs argue, makes them complicit in what they believe to be a sinful act: supporting contraception. Such an act, they believe, violates their rights under the Religious Freedom Restoration Act (RFRA).

These claims have been rejected nearly unanimously in federal courts. Seven of eight federal appeals courts have handed down rulings in favor of the Obama administration, holding that the accommodation shows appropriate regard for religious freedom, but that is enough for a circuit split, the traditional grounds for the Supreme Court to step in.

“Every court of appeals but one has concluded that having to mail a letter can’t be a substantial burden on religion,” said health law expert Elizabeth Sepper, JD, an associate professor of law at Washington University in St. Louis. “If having to ask for an accommodation from the law is a substantial burden on religious belief, then everything is.”

In legal briefs filed for the case, Solicitor General Donald Verrilli states that in passing health care reform, Congress established that such preventive services for women were “critical to improving public health” and that people were far more likely to engage in preventive care when they did not have to pay out of pocket. Research shows that high costs have forced many women to stop or delay using their preferred method of birth control, while others have chosen to depend on less effective methods that are the most affordable. Before Obamacare, more than half of young adult women reported that they sometimes did not use their method as directed because it was cost-prohibitive.

Now, even more women could find themselves in that very position if the Supreme Court rules in favor of allowing large nonprofit corporations to completely deny birth control coverage to employees. “If the Supreme Court were to side with the large employers in this upcoming case, their employees would be totally stripped of access to contraceptive coverage,” Sepper warned.

As Ruth Bader Ginsburg perfectly put it in her Hobby Lobby dissent: “The court, I fear, has ventured into a minefield.”

 

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