News Contraception

They Are Coming for Your Birth Control: Cuccinelli Supports Civil Disobedience as Method of Flouting Birth Control Benefit

Robin Marty

The "pro-life" folk are upping their violent rhetoric when it comes to stopping women from preventing pregnancy.

Note: Think that anti-choice politicians and activists aren’t trying to outlaw contraception?  Think again.  Follow along in an ongoing series that proves beyond a doubt that they really are coming for your birth control.

Dr. Martin Luther King went to jail to protest segregation. Gandhi went on hunger strikes to fight colonial rule. Virginia Attorney General Ken Cuccinelli thinks going to jail to avoid offering health insurance that covers emergency contraception is just as worthwhile.

Via Politico:

You know, Abraham Lincoln has many good quotes, but one of them is ‘the best way to get rid of a bad law is to enforce it vigorously.’ And here we’re going to have an example of what tyranny means when it’s played to its logical conclusion,” Cuccinelli said. “Because forcing business owners and businesses to do this is not consistent with our history of preserving religious liberty, one of the most important protections we have in this country.”

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Cuccinelli recounted an exchange with his own bishop in which he counseled the cleric to embrace civil disobedience: “My local bishop said, ‘Well, you know I told a group I’m ready to go to jail.’ And I said, ‘Bishop, don’t take this personally: You need to go to jail.’”

“What I mean by that is, people need to see it play out all the way to its logical conclusion,” Cuccinelli said.

Cuccinelli isn’t the only one advocating civil disobedience rather than allowing women access to pills that will delay ovulate and prevent an unwanted pregnancy after unprotected sex. In fact, he’s just echoing the recent claim of Father Frank Pavone that, had his own suit not succeeded, he would have been willing to endure jail time himself.

“We were prepared to violate the mandate on Jan. 1, at great expense to our organization,” Pavone wrote on his website. “We are very grateful to the court that we did not have to take that step, and we remain confident that this unjust mandate will be entirely and permanently struck down.”

Pavone was willing to pay costly fines, much like craft store chain Hobby Lobby said it would be. Now, however, Hobby Lobby says it will delay the start date of its insurance coverage to avoid penalties (a decision that has changed now that they already reaped the benefits from a “support Hobby Lobby” buying spree).

Cuccinelli’s “go to jail” comments are just the latest in public statements created to  incite the religious right, and it’s not going unnoticed. However, it’s former Congressman Joe Walsh who is taking that challenge and fanning the flames even harder. Newsmax writes, “The Republican firebrand said conservatives may have to ‘defy and or break the law and engage in civil disobedience’ to make a point. But he also paraphrased Thomas Jefferson, saying: ‘We may have to shed blood every couple hundred years to preserve our freedoms.'”

Are Cuccinelli and Walsh ratcheting up the rhetoric in an already heated battle? Maybe. Or maybe they are just showing the mainstream media what they are already saying in private in their own outlets, such as when legal analyst Ken Kuklowski wrote:

This is civil disobedience, consistent with America’s highest traditions when moral issues are at stake. The Greens are a law-abiding family. They have no desire to defy their own government. But as the Founders launched the American Revolution because they believed the British government was violating their rights, the Greens believe that President Barack Obama and Secretary Kathleen Sebelius are commanding the Greens to sin against God, and that no government has the lawful authority to do so.

The Christian tradition of defying government commands to do something wrong goes back to the very birth of Christianity. When the apostles were ordered not to share the gospel of Jesus Christ with anyone, the Book of Acts records: “Peter and the other apostles replied: ‘We must obey God rather than men! The God of our fathers raised Jesus from the dead—whom you had killed by hanging him on a tree.’”

Eleven of the twelve apostles—including Peter—would lose their lives for the sake of spreading the gospel of Jesus Christ; only the apostle John died of old age. They were determined to obey God’s will at all costs.

Millions of Christians across the country feel exactly the same way as the Greens. The Obama administration has issued a statist command that is a declaration of war on people of faith who object to abortion, and civil disobedience could break out all over the country unless the courts set this matter right—and quickly.

Are we really going to “shed blood” to stop access to no co-pay emergency contraception? I guess it’s give me liberty or give me ella, because they are obviously coming for your birth control.

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 Nonprofits Press Supreme Court for Full Exemption From Birth Control Benefit

Jessica Mason Pieklo

The Supreme Court ordered the Obama administration and religiously affiliated nonprofits to work out a solution to the challenges to the Affordable Care Act's birth control benefit. Not surprisingly, the religiously affiliated nonprofits refuse to do so.

In late March, the U.S. Supreme Court heard oral arguments in Zubik v. Burwell, the lead case challenging the Obama administration’s process for accommodating religious objections to the Affordable Care Act’s birth control benefit. It was apparent then that the remaining eight justices were deadlocked as to whether the process did enough to protect the religious objections of the nursing home operators and university administrators who had launched this latest round of lawsuits.

Hoping to avoid a split decision—which would subject some religiously affiliated nonprofits to penalties if they failed to follow the accommodation process and not others, depending on their appellate court circuit —the justices ordered the government and the religious objectors to try and find a solution both sides could work with and present it to the court via briefing in April. Well, the nonprofits and the Obama administration have filed that first round of briefing. And if the Roberts Court thought the religious objectors were interested in any sort of real solution to the problems posed in their lawsuits, it was mistaken. The negotiating position for the religiously affiliated challengers remains: full exemption from the requirement or bust.

In its order asking for supplemental briefing, the Roberts Court asked parties on both sides to address whether “contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” According to the nonprofits, “[t]he answer to that question is clear and simple: Yes.”

If only it were that clear and that simple.

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In the remaining 20-plus pages of the nonprofits’ brief, their lawyers set out a variety of options that could, they say, provide seamless contraception coverage while preventing the nonprofits from in any way “facilitating” the sin of providing health insurance plans that include contraception. But the thing is, none of those options are actually accommodations to the ACA’s requirement that employer-provided health insurance plans cover contraception at no additional cost or co-pay.

One of the religious objectors’ solutions, for example, is to have the government directly require insurance companies to create entirely new and separate contraception-only plans. The companies would then contact plan beneficiaries directly with information about the policy and how to enroll. These separate plans, objectors offer, could take the form of individual insurance policies or of group health plans sponsored by the government.

In other words, one option is for the government to come up with an entirely different regulatory scheme for dealing with contraception altogether. That scheme would apply to religiously affiliated nonprofits and presumably the secular for-profit companies like Hobby Lobby that petitioned the Roberts Court for the very same accommodation now regarded by objectors as too onerous for compliance.

The fact this is one option offered up by the religiously affiliated nonprofits should come as no surprise. It’s right out of the anti-choice playbook with regard to insurance coverage for abortion. As states set up their own insurance exchanges during the implementation of the ACA, anti-choice politicians were quick to put restrictions on the kinds of coverage for abortion that insurance companies could offer in individual or employer-sponsored plans. So far, 10 states ban abortion coverage generally, while 25 ban abortion coverage in their exchanges. In other words, if you happen to live in Idaho, Indiana, Kansas, Kentucky, Michigan, Missouri, Nebraska, North Dakota, Oklahoma, or Utah, you cannot purchase a health insurance plan that covers abortion. At all. Including through your employer. Meanwhile, states like Arizona, Florida, North Carolina, Virginia, and Wisconsin—just to name a few—prevent comprehensive health insurance plans that cover abortion from being sold on their state exchanges.

Do we really think that if this “contraception insurance” plan offered by the religiously affiliated institutions were to become the “solution” to these legal challenges, the result would look any different than it has for insurance coverage for abortion? Hypothetically, broad contraceptive coverage could end across the country, with many states banning the coverage altogether. This, of course, is the exact scenario the Supreme Court is hoping to avoid.

All of the objectors’ “solutions” are, in fact, just other ways of granting exemptions from the birth control benefit. In other words, they seem to be saying, if and when religiously affiliated hospitals, nursing homes, and day care centers can be treated under the law the same way as churches, synagogues, and mosques, then the lawsuits will stop.

That doesn’t sound so much like a compromise as it does a threat.

The Obama administration has until April 20 to respond directly to the petitioners’ arguments. It has already filed its own briefing arguing the process as it stands completely accommodates any religious objections in a way that balances the government’s compelling interest in promoting nondiscriminatory health insurance coverage for employees while respecting the beliefs of those who see contraception as sin.

But perhaps most importantly, the government’s brief argues that any additional tinkering with the accommodation process, rather than a ruling on the merits by the Roberts Court that the current process is sufficient, will only result in many more years of litigation. And it’s a point the petitioners pretty much concede by failing to offer up any workable compromise at all.