News Law and Policy

Religious Nonprofits Continue to Refile Challenges to Contraception Mandate

Jessica Mason Pieklo

Ave Maria University is the latest of the religious nonprofit organizations to refile a legal challenge to the Affordable Care Act's contraception benefit after having an earlier legal challenge dismissed.

Ave Maria University is the latest of the religious nonprofit organizations to refile a legal challenge to the Affordable Care Act’s contraception benefit after having an earlier legal challenge dismissed.

The lawsuit alleges the contraception benefit, even with its final accommodation for religious-affiliated nonprofits like Ave Maria University, violates the First and Fourteenth Amendments because, according to Ave Maria President Jim Towey, it makes the university “complicit” in providing birth control. The university refiled its legal challenge after a federal judge dismissed an earlier, identical challenge because it was not “ripe” or ready to litigate, since the Obama administration had not yet issued its final rule on how to accommodate the concerns of religious employers and religiously affiliated nonprofits who argue complying with the mandate would force them to violate their deeply-held religious beliefs.

The Becket Fund for Religious Liberty, a conservative nonprofit litigating most of the religious challenges to the contraception mandate, is representing the university. According to the complaint, the school says it faces a fine of $100 per day, per employee if it fails to comply with the mandate, which will be in full effect on January 1, 2014. The university has less than 100 students currently enrolled, but employs about 140 employees, which, according to the complaint, would leave the university facing approximately $7 million in fines for failing to comply.

The university is expected to ask for an injunction to block enforcement of the mandate this week.

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Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

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Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.

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.