Commentary Contraception

Owners of Chicago Bears Gin Up Fear About Access to Contraception as a Religious Freedom Issue

Amy Phillips Bursch

The owners of the Chicago Bears fear that requiring the football team to furnish its employees contraception tramples upon their religious freedom. And they even have a song about it.

I’ve heard people say football is our national religion, but this is ridiculous:

On Sunday, the owners of the Chicago Bears hosted a meeting at the team’s practice facility where religious leaders and politicians (bad combo) pounced all over the “Obamacare” requirement that contraception be covered by employer insurance plans.

According to the Chicago Tribune, speakers lamented the “eroding freedom to speak in the language of faith in the public square.” How denying women contraception the same women pay for through their own insurance premiums equals “freedom of speech” is anyone’s guess.

And this:

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“Some speakers cited evidence of religious persecution in abortion laws, gay marriage, and efforts to characterize opponents of the contraception mandate as anti-women.”

So let me get this straight: If a woman makes the extraordinarily personal decision to end a pregnancy, everyone who disagrees with that decision is being religiously persecuted? How do my reproductive decisions affect your religious faith or freedom in the slightest?

Trick question! They don’t.

Apparently, the team’s senior director of special projects serenaded the crowd with a “religious liberty-themed rendition of ‘Bear Down, Chicago Bears,’” which sounds absolutely hideous and should qualify as “religious persecution” itself, if we’re going by the Bears’ event speakers’ standards.

So add the owners of the Chicago Bears to the list of employers who seem to think they should decide whether or not their employees have access to birth control in all the . So far, the Bears’ owners are just complaining, not suing. Here are some employers who’ve taken the additional step of challenging the Affordable Care Act in court:

  • Craft supplies purveyor Hobby Lobby of Oklahoma City. The company’s founder, David Green says: “Hobby Lobby has always been a tool of the Lord’s work. But now our faith is being challenged by the federal government. We simply cannot abandon our religious beliefs to comply with this mandate.”
  • Korte & Luitjohan Contractors, Inc., of Highland Illinois. The firm’s owners, Cyril and Jane Korte, “acknowledge in their complaint that their company’s current group plan includes coverage for contraceptives, sterilization, and abortion. They discovered this in August and claim it ‘is an error that is contrary to what plaintiffs want based on their religious beliefs.’” Awkward!

I’ve argued that one way to end the “religious persecution” of employers being required to offer health insurance that covers—you know, health care—is to divorce health care from employers entirely.  

Single-payer health care! Suppose the employers suing the government over “Obamacare” would go for that?

Commentary Law and Policy

Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling

Bridgette Dunlap

Yes, the Zubik v. Burwell case challenged the Affordable Care Act's contraceptive coverage mandate. But that shouldn't stop you from getting your reproductive health needs met—without a co-payment.

In May, the Supreme Court issued a sort of non-decision in Zubik v. Burwell, the consolidated case challenging the Affordable Care Act’s mandate that employers provide contraceptive coverage. The ruling leaves some very important legal questions unanswered, but it is imperative that criticism of the Court for “punting” or leaving women in “limbo” not obscure the practical reality: that the vast majority of people with insurance are currently entitled to contraception without a co-payment—that includes people, for the most part, who work for religiously affiliated organizations.

Two years ago, hyperbole in response to the Court’s decision in Burwell v. Hobby Lobby—that, for example, the Court had ruled your boss can block your birth control—led too many people to believe the contraceptive coverage requirement was struck down. It wasn’t. The Zubik decision provides a good opportunity to make sure that is understood.

If people think they don’t have birth control coverage, they won’t use it. And if they don’t know what coverage is legally required, they won’t know when their plans are not in compliance with the law and overcharging them for contraceptives or other covered services, perhaps unintentionally. The point of the contraceptive coverage rule is to make it as easy as possible to access contraceptives—studies show seemingly small obstacles prevent consistent use of the most effective contraceptives. Eliminating financial barriers isn’t enough if informational ones undermine the goal.

The most important thing to know is that most health plans are currently required to cover reproductive health services without a co-payment, including:

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  • One version of every kind of FDA-approved contraception—that is, only the generic or the brand-name version of the contraceptive could be covered, but at least one must be. So you shouldn’t be paying a co-payment whether you use the pill, the patch, the shot, or want long-acting reversible contraception (LARC) like an IUD, which is more expensive, but most effective.
  • Screening for HIV and high-risk strains of HPV
  • An annual well-woman visit
  • Breastfeeding counseling and supplies like pumps

There are exceptions, but most plans should be covering these services without a co-payment. Don’t assume that because you work for Hobby Lobby or Notre Dame—or any other religiously affiliated employer—that you don’t currently have coverage.

The original contraceptive coverage rule had an “exemption” for church-type groups (on the somewhat dubious theory that such groups primarily employ individuals who would share their employers’ objection to contraception). When other kinds of organizations, which had religious affiliations but didn’t primarily employ individuals of that same religion, objected to providing contraceptive coverage, the Obama administration came up with a plan to accommodate them while still making sure women get contraceptive coverage.

This “accommodation” is a workaround that transfers the responsibility to provide contraceptive coverage from the employer to the insurance company. After the employer fills out a form noting it objects to providing contraception, the insurance company must reach out to the employee and provide separate coverage that the objecting organization doesn’t pay for or arrange.

This accommodation was originally available only to nonprofit organizations. But dozens of for-profits, like Hobby Lobby, sued under the Religious Freedom Restoration Act (RFRA)—arguing that their owners were religious people whose beliefs were also burdened by the company having to provide coverage.

The Hobby Lobby decision did not say your boss’s religious belief trumps your right to a quality health plan. What the Court did was point to the existence of the accommodation for nonprofits as proof that the government could achieve its goals of ensuring coverage of contraception through a workaround already in place to give greater protection to objectors. Basically, the Court told the government to give the for-profits the same treatment as the nonprofits.

The Hobby Lobby decision states explicitly that the effect of this on women should be “precisely zero.” The Obama administration subsequently amended the contraceptive regulations, making coverage available to employees of companies like Hobby Lobby available through the accommodation. Hobby Lobby added some headaches for administrators and patients, but it did not eliminate the contraceptive coverage rule.

Next, however, the nonprofits went on to argue to the Supreme Court and the public that the accommodation the Court had seemed to bless in Hobby Lobby also violated RFRA—because having to fill out a form, which notified the government that they objected to contraceptive coverage and identifying their insurers, would substantially burden their religious beliefs.

Following oral arguments in Zubik, the eight-member Supreme Court issued a highly unusual order: It asked the parties to respond to its proposed modification of the accommodation, in which the government would not require objecting nonprofits to self-certify that they oppose contraception nor to identify their insurers. The government would take an organization’s decision to contract for a health plan that does not cover contraception to be notice of a religious objection and go ahead with requiring the insurer to provide it instead.

The petitioners’ response to the Court’s proposed solution was “Yes, but…” They said the Court’s plan would be fine so long as the employee had to opt into the coverage, use a separate insurance card, and jump through various other hoops—defeating the goal of providing “seamless” contraceptive coverage through the accommodation.

When the Court issued its decision in Zubik, it ignored the “but.” It characterized the parties as being in agreement and sent the cases back to the lower courts to work out the compromise.

The Court told the government it could consider itself on notice of the petitioners’ objections and move forward with getting separate contraceptive coverage to the petitioners’ employees, through the accommodation process, but without the self-certification form. How the government will change the accommodation process, and whether it will satisfy the petitioners, are open questions. The case could end up back at the Supreme Court if the petitioners won’t compromise and one of the lower courts rules for them again. But for prospective patients, the main takeaway is that the Court ruled the government can move forward now with requiring petitioners’ insurers to provide the coverage that the petitioners won’t.

So—if your plan isn’t grandfathered, and you don’t work for a church or an organization that has sued the government, your insurance should be covering birth control without a co-payment. (If your plan is grandfathered and your employer makes a change to that plan, then those formerly grandfathered plans would be subject to the same contraceptive coverage requirements.) If you do work for one of the nonprofit petitioners, the government should be making contraceptive coverage available even before the litigation is resolved. And in some cases, employees of the petitioners already have coverage. Notre Dame, for example, initially accepted the accommodation before being pressured by off-campus contraception opponents to sue, so its insurer is currently providing Notre Dame students and employees coverage.

Don’t despair about the Supreme Court’s gutting access to contraception. Assume that you have coverage. The National Women’s Law Center has great resources here for finding out if your plan is required to cover contraception and how to address it with your insurance plan if it isn’t in compliance, and a hotline to call if you need help. The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.

Analysis Law and Policy

Religious Accommodations Try to Turn Back the Clock

Elizabeth Reiner Platt

Although the U.S. Supreme Court called an attempt to discriminate based on a religious belief “patently frivolous” in one 1968 case, the proliferation of such laws today jeopardizes anti-discrimination efforts on multiple fronts nationwide.

“Oh, it’s a big problem with the members of my church, my community, and my mother-in-law .… They don’t allow that black and white shacking.”

That was the explanation Mississippi landlord Gene Baker gave for evicting Erica Flores Dunahoo and her husband, National Guard Sgt. Stanley Hoskins, from his RV park in February, Dunahoo told the Clarion-Ledger newspaper. Dunahoo, who is Latina and Native American, and Hoskins, who is Black, moved to another RV park with higher rent.

What’s even more troubling, however, is that some state laws recently introduced across the country would actually sanction this type of discrimination. While the couple’s eviction would likely violate the federal Fair Housing Act, which applies to most housing providers nationwide, some recently proposed state bills would create religious exemptions to state and local anti-discrimination laws—many of which provide important protections to people who may not be sufficiently covered by federal law. (As a side note, Mississippi is actually one of few states that has no state Fair Housing Act).

Just as the Civil Right Act of 1964 prompted segregationists to demand religious exemptions from the law, the gains of the LGBTQ rights movement has led to the introduction of dozens of state bills designed to provide individuals and companies with a license to discriminate based on their religious beliefs. While these new bills may be motivated by opposition to LGBTQ rights, it’s important to note that many of these vague, broad, and poorly worded bills would not just affect the LGBTQ community—they could also renew demands for a religious right to discriminate on the basis of race, sex, or other factors.

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Many academics, advocates, journalists, and politicians have already noted that today’s religious objections mirror those made by opponents of desegregation in the past. Religious exemptions from the Civil Rights Act were considered both by the legislature and by federal courts. But while there is a long history of religious resistance to desegregation, both Congress and the Supreme Court flatly rejected religious exemptions from anti-discrimination law in the 1960s.

An early version of the Civil Rights Act of 1964 excused religiously affiliated employers from compliance with the entire act. This was discarded, however, and Congress’ final draft of the Civil Rights Act only exempted religious organizations from religious discrimination provisions, so that they could give special preference to people who shared the organization’s religious faith.

Once the Civil Rights Act was passed, some business owners, like Maurice Bessinger of the South Carolina-based barbecue chain Piggie Park, argued in court that even without an exemption, under the First Amendment their religious beliefs should protect them from being forced to desegregate. In the 1968 case Newman v. Piggie Park Enterprises, Inc., the Supreme Court called the restaurant’s religious liberty claims “patently frivolous.”

Despite the fact that a religious right to segregation was prohibited decades ago, Dunahoo and Hoskins’ experience shows that religiously motivated racial discrimination is still alive and well today.

While some bills—like Missouri’s SJR 39, which died in committee in late April—focus more narrowly on religious objections to marriage between persons of the same sex, other bills would protect those who oppose interfaith or interracial marriage or even desegregation. Georgia’s HB 757, which was vetoed by Republican Gov. Nathan Deal in early April, could have allowed government clerks to refuse to provide marriage licenses to interracial couples or religious organizations to refuse to provide any “social, educational, or charitable services that violate such faith based organization’s sincerely held religious belief.” Kentucky’s SB 180, which passed the state senate in March and is now awaiting a vote in the house, contains similar provisions.

And while federal laws including the Civil Rights Act and the Fair Housing Act contain strong protections against racial discrimination, accommodations that close off discrimination claims based on state or local law are nevertheless significant.

Nearly every U.S. state and many municipalities have adopted at least some anti-discrimination protections in employment, housing, or public accommodations. These state- or local-level discrimination claims may be easier to litigate than federal anti-discrimination laws. For example, they may require a lower standard of proof to show that discrimination occurred. Additionally, state and local discrimination laws often cover smaller landlords or businesses than federal law. Finally, state and local claims may provide additional monetary damages or other forms of relief to those who face discrimination. By carving out religious exemptions from state and local anti-discrimination law, accommodation bills would force people of color and other marginalized populations to once again bear the burden of others’ discriminatory religious beliefs.

State laws that allow for religiously motivated discrimination would also close off other legal claims, such as those based on contract violations. For example, if a religiously affiliated company fired an employee for marrying someone of a different race, she may lose the right to sue based on breach of an employment contract if the employer is covered by a broad accommodation law.

Furthermore, it’s possible that those who wish to discriminate could also demand an exemption from federal anti-discrimination law under the Religious Freedom Restoration Act. This is the same law the craft store giant Hobby Lobby used to avoid providing its employees with contraception, as required by the Affordable Care Act.

In order to succeed with such an argument, a religious objector would have to show that hiring, housing, or serving a particular group of people (like interracial couples) would burden his exercise of religion. If this is the case, then he would win his claim unless the government could show that federal anti-discrimination law serves a “compelling government interest,” and there is no way of furthering that interest that is less burdensome to the objector’s religious exercise.

In Burwell v. Hobby Lobby, the majority opinion indicated that it believed the government does have “a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” But the Court has not actually ruled on this issue, and its failure to find an overriding government interest in women’s health, dignity, and equality in Hobby Lobby does not bode well for future cases.

By allowing religion to be used as a veil for discrimination, state legislators are ignoring the lessons of history. In Newman v. Piggie Park Enterprises, Inc., the Supreme Court dismissed a broad religious liberty claim. The argument that personal religious beliefs may trump the most basic liberty and equality rights of others should be rejected with equal force today by state governments considering religious exemption bills, and by judges being asked to find a religious right to discriminate.