News Law and Policy

Nearly 350,000 Individuals, Groups Voice Support for Birth Control Benefit

Jessica Mason Pieklo

Women's health and advocacy organizations help show the Obama administration that support for the birth control benefit far outweighs opposition to it.

On Monday a coalition of women’s health and advocacy organizations, including the National Women’s Law Center (NWLC), NARAL Pro-Choice America, and the Center for Reproductive Rights, along with Rewire readers and other individuals and groups submitted nearly 350,000 comments to the Department of Health and Human Services in support of ensuring women’s access to birth control without co-pays or hassles, regardless of where they work.

Religious institutions and for-profit businesses have teamed up to challenge the birth control benefit in the Affordable Care Act, with nearly 60 lawsuits having been filed in federal court. Meanwhile, the Obama administration is finalizing the scope of the religious exemption to the benefit. The comments were submitted as the administration prepares to issue its final rule related to the benefit and the religious exception.

NWLC Co-President Marcia Greenberger said in a statement, “This unprecedented number of supporters spoke up for the Obama administration’s plan to ensure women’s access to seamless coverage of affordable birth control, no matter where they work or who their boss is.”

Planned Parenthood Federation of America President Cecile Richards added in a statement, “The comments we submitted today came from women and men in all 50 states—and each one represents someone who understands, just like we do at Planned Parenthood, that when insurance companies cover women’s preventive care, including birth control, we all benefit.”

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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.

News Law and Policy

Supreme Court Punts on Birth Control Benefit Challenges

Jessica Mason Pieklo

The next question is whether, over the coming months, the federal appeals courts can once and for all put an end to this litigation by issuing consistent decisions, or whether it’s going to take a fifth justice on the Roberts Court to do so.

The U.S. Supreme Court on Monday sent back to the appellate courts a series of cases brought by religiously affiliated nonprofits against the birth control benefit in the Affordable Care Act (ACA).

The religious nonprofits argue that the opt-out process for complying with the ACA’s requirement that employer-provided health insurance plans cover contraception as preventive care violates the Religious Freedom Restoration Act (RFRA).

The decision issued in Zubik v. Burwell was per curium, which means it was a group decision “by the Court” rather than one in the name of a majority of justices. The decision avoids for now a direct ruling on whether the accommodation process violates the RFRA.

The Court had consolidated seven cases into a single oral argument, but on Monday released separate orders in each case instructing the appellate courts to reconsider them. That means there will likely be additional briefings and oral arguments, putting off final resolution of the issue until after the 2016 presidential election.

The Court instructed the lower courts to “to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.'”

In short, the justices told the parties to, once again, try and work it out on their own.

The justices sent a clear instruction to the nonprofits challenging the accommodation process: While the litigation moves forward, the goal of the birth control benefit—to provide seamless contraceptive coverage—must remain in place.

“Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives,’” the Court wrote.

But just as the Court warned the nonprofits about trying to further interrupt contraceptive coverage for their employees and students, it warned the Obama administration not to move forward in enforcing penalties for those institutions that have objected to the accommodation process and to providing contraceptive coverage.

“Through this litigation, petitioners have made the Government aware of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds,’” the Court wrote. “Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.”

Justice Sonia Sotomayor, while agreeing in the outcome of the case, wrote a separate opinion, joined by Justice Ruth Bader Ginsburg. That opinion warns the lower courts and nonprofit challengers not to presume the Supreme Court would, in future arguments, accept the challengers’ argument that some other mechanism exists for accommodating the religious objections to providing contraception.

“Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests,” Sotomayor wrote. “On remand in these cases, the Courts of Appeals should not make the same mistake.”

Furthermore, Sotomayor clarified, “The opinion does not, by contrast, endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a ‘separate policy, with a separate enrollment process.’”

“Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation,” the Court wrote.

Monday’s decision resolved effectively nothing when it came to the battle over the ACA’s accommodation process. The next question is whether, over the coming months, the federal appeals courts can once and for all put an end to this litigation by issuing consistent decisions, or whether it’s going to take a fifth justice on the Roberts Court to do so.