News Contraception

Outside Supreme Court, A Call for Reproductive Justice

Adele M. Stan

More than 40 groups came together on the Court's plaza to rally in support of the birth control benefit in Obamacare, as the justices heard arguments against it.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

As the justices of the U.S. Supreme Court heard the arguments of attorneys on either side of two cases that will determine if the birth control benefit in the Affordable Care Act (ACA) will be permitted to stand as currently constructed, advocates for and against rallied in front of the Court.

On one side of the vast plaza in front of the Court building, anti-choice forces massed, some bearing signs featuring photographs of bloody fetuses, and insisting that birth control and abortion are the same thing. Dominating the protest visuals of the pro-Hobby Lobby crowd were the red sashes of Tradition, Family and Property (TFP), the far-right Catholic group whose founder has called the Spanish Inquisition, during which accused heretics were tortured to death, “a glorious moment” for the church.

On the other, some 40 progressive groups came together in coalition to support the contraception benefit, the dominant color being the pink stocking caps and t-shirts of the Planned Parenthood Action Fund, which co-sponsored the rally together with the American Civil Liberties Union, the National Women’s Law Center, and NARAL Pro-Choice America.

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Snow fell throughout the morning, soaking the rally-goers, who remained undaunted and energetic. Signs on the reproductive justice side of the plaza offered an array of messages:

“If Men Could Get Pregnant, Birth Control Would Be From Gumball Machines and Bacon-Flavored”

“Keep Your Hobbies Off My Ovaries”

“Bigotry Disguised as Religious Liberty Is Still Bigotry”

On the side of the plaza where the Hobby Lobby supporters gathered, the TFP contingent unfurled a banner that read, “God’s Law Comes First. Repeal Socialist Obamacare!” A man on the sidewalk in front of them propped up a homemade poster emblazoned with a swastika, a photo of President Barack Obama wearing a crown, the words “Tyranny” and “You Will Pay,” together with a photo of a bloody fetus in one corner.

At the progressive rally, dubbed “Not My Boss’s Business,” Kimberly Inez McGuire, director of public affairs for the National Latina Institute for Reproductive Health (NLIRH), and Carol McDonald, director of strategic partnerships for the Planned Parenthood Action Fund, led the crowd in spirited chants, such as: “Let it snow, we won’t go! Bosses in the bedroom got to go!” and “What do we want? Birth control! When do we want it? Always!” McGuire also led chants in Spanish, and McDonald emceed the rally.

Organizers read a statement they said was from an employee of Hobby Lobby who wished to remain anonymous, fearing for her job. “We are a single-income family and if I were to lose my job over something like this we would probably be on the streets,” the statement reads. The writer explained:

Birth control coverage should be important for everyone, not just women. … without birth control, I could have been pregnant a lot sooner than I would have liked … This is a very significant thing in my opinion and I think it should be readily available for any woman that wants to take responsibility of her life.

McDonald told a bit of her own story, explaining that she was born to a teen mother. “And the one lesson that I heard over and over, when I was a teenager and I was comin’ up, was, ‘Wait until you’re ready to have your children,’” McDonald said. “And I waited until I was 37. And that decision—for me to wait until I was ready? That helped me to break the cycle of poverty in my family.”

Jamila Perritt, medical director at the Planned Parenthood affiliate of Metropolitan D.C., told the story of one of her patients, a single mother with a full-time job who was attending school at night. Her patient was “trying to do the right thing,” Perritt said, by coming to the clinic for birth control. “But upon hearing of the cost of the only method that was medically safe for her, she burst into tears,” Perritt said. “She could not afford it. There was no way—not with everything else on her plate.”

As anti-choice protesters caught sight of Perritt in her white doctor’s coat on the podium, they moved in behind her, hoisting giant, gruesome posters of a bloody fetus, and remained after she left the microphone. McDonald urged the crowd to ignore them, as rally-goers attempted to raise their own signs and banners to block out the
intruders.

Also represented among the speakers at the progressive rally were officials from the labor movement and LGBT organizations, including Hector Sanchez, chair of the National Hispanic Leadership Agenda and executive director of Labor Council for Latin American Advancement; Sarah Warbelow, state legislative director of the Human Rights Campaign; and Rev. Darlene Nipper, deputy director of the National Gay and Lesbian Task Force.

“Today we come together to push back the latest desperate effort by extremists to control our freedom, to control our bodies, and our health-care choices,” Nipper told the cheering crowd. “The fanatical right is always wrong. In this instance, they’re stooping even lower than usual. They’re cynically using religion and people of faith to justify their almost rabid hatred of women, Obamacare and, ultimately, real freedom.”

Dorothy Roberts, professor of law and sociology at University of Pennsylvania and board chair of the Black Women’s Health Imperative, spoke to the disproportionate impact of barriers to birth control aspect of women of color and others. “We found that when access to health care is denied, it’s the most marginalized women in this country and around the world who suffer the most—women of color, poor and low-wage workers, lesbian and trans women, women with disabilities,” said Roberts, author of Killing the Black Body: Race, Reproduction and the Meaning of Liberty. “And this case has far-reaching consequences for their equal rights. Birth control is good health care, period.”

Testimonials were offered, as well, by several college students, doctors and nurses, and religious leaders. Rep. Jan Schakowsky (D-IL) stepped up for a minute to state her appreciation for the creative messaging of the rally-goers’ signs, and to promise to “continue this fight until it’s won.”

“[W]e are the 99 percent, we are intersectional,” McDonald told the crowd. “This is what democracy looks like.”

All pictures used in the slideshow below were taken by Adele M. Stan. Hover over any picture to see its caption:

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Analysis Law and Policy

The Supreme Court Could Give Religiously Affiliated Employers Even More Room to Discriminate

Jessica Mason Pieklo

A series of cases working their way through the courts could expand which businesses get a pass for offering employees discriminatory health and retirement benefits.

You may remember the Little Sisters of the Poor—that group of earnest nuns who challenged the process for accommodating religious objections to the birth control benefit in the Affordable Care Act. The Little Sisters, along with dozens of other religiously affiliated nonprofits, have continuously argued that the act of completing a form to be legally excused from complying with the law substantially burdens their religious rights.

Well, the Little Sisters remain tied up in litigation with the Obama administration over birth control, nondiscriminatory insurance coverage, and their religious objections to providing for both. But there’s more at stake here. To be clear, the Sisters are intent on doing everything they can to block comprehensive insurance coverage for their employees, and block third parties from providing it to them as well. But buried in litigation footnotes is a provision of employee benefits law that, if the Sisters and other religiously affiliated organizations get their way, will solidify another pass for discriminatory corporate practices beyond contraception coverage alone.

The Employee Retirement Income Security Act, or ERISA, is the federal law governing employee benefit plans, including retirement accounts and health insurance. Both the Department of Labor (DOL) and the Internal Revenue Service (IRS) are charged with ensuring ERISA compliance, which, as you can imagine, makes ERISA a prime target for conservatives who already hate “big government.”

Employer plans governed by ERISA have a few requirements that particularly draw conservative ire. One mandates that employer-sponsored retirement plans meet certain minimum funding levels by the employer. This is to help those plans be meaningful ways for employees to save for retirement, without putting the entire burden on those workers. Another provision forbids those plans from discriminating in benefits, such as matching a higher percentage of a male employee’s retirement contributions than a female one’s, or providing comprehensive health insurance coverage for men but not women. The ACA’s birth control benefit draws upon this theory.

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However, not all employers are required to follow ERISA. In particular, the statute exempts “church plans” from its requirements. ERISA defines church plans as those “established and maintained … for its employees … by a church or by a convention or association of churches which is exempt from tax under section 501 of the Internal Revenue Code.” Church plans also include those plans maintained by an organization “controlled by or associated with a church or by a convention or association of churches.” The rationale behind the church plan exemption is similar to the rationale behind most religious or ministerial exemptions to other nondiscrimination laws: Religious orders and institutions like churches and synagogues will generally employ people who follow the same religious tenets as they do because those organizations are engaged in spiritual outreach as part of their “business.”

That prohibition on ERISA governing “church plans” is also incorporated into the ACA.

Historically, organizations like the Little Sisters have had a regulatory pass when it came to maintaining retirement plans and insurance coverage that are either underfunded, discriminatory, or both. That’s because both the DOL and the IRS have been generous in their determination of how they interpret “controlled by or associated with a church or by a convention or association of churches.” And if those agencies determine that an organization has a “church plan,” that, in turn, means it won’t be subjected to a tax penalty for not complying with the ACA’s birth control benefit.

Given the explosion of religiously affiliated employers like hospitals and nursing homes, however, the scope of what does and does not qualify as a church plan has become an increasingly important issue. As religiously affiliated employers began to grow well beyond employing people of similar tenets, away from their ministerial core and into marketplace competition with secular, for-profit businesses, it has made less and less sense to allow those employers a pass to discriminate under ERISA.

At least that’s the argument advanced in a flurry of lawsuits challenging the scope of the church plan exemption under ERISA. Those lawsuits include one against Dignity Health Care, the Catholic-affiliated hospital system facing separate lawsuits related to failing to offer comprehensive reproductive health care at its hospitals. According to the allegations in the complaint, Dignity repeatedly underfunded its retirement plan in violation of ERISA. Dignity responded by arguing its plans were church plans and not subject to ERISA oversight.

Neither the district court nor the Ninth Circuit Court of Appeals bought Dignity’s argument, holding there was no way that when Congress created the church plan exception, it intended the exemption to stretch as far as to shield the country’s fifth-largest health-care employer from regulatory oversight.

That question presented in the Dignity case—of just how broadly that exemption extends—could end up before the U.S. Supreme Court next term. The Roberts Court is considering a pair of cases with this exact issue at their center. Both involve religiously affiliated hospitals, and both have appellate court decisions ruling that organizations like Dignity, which are not actually churches nor actually maintained by religious orders, may not qualify for the church plan exemption.

Which brings us back to the Little Sisters, on whose cases these organizations will undoubtedly base some of their own arguments. The Little Sisters do have a church plan. And it should mean that they will never have to comply with the birth control benefit anyway—which would give them no standing to challenge the ACA’s accommodation. But this is not the argument the Little Sisters and their attorneys want the courts or the public to hear. Instead, the litigation has focused on whether or not completing the form for the birth control accommodation would be a substantial burden for the nuns, despite the fact that at this point under ERISA, there is no question that the federal government could penalize the Little Sisters for refusing to comply with the contraception benefit.

However, the Little Sisters are more than just a group of nuns. They own and operate facilities that employ and serve others. The DOL and IRS have, to date, agreed that the Little Sisters benefits plan is in fact a church plan. But that is in part because without switching plan administrators, the question of whether or not their employee benefits package still qualifies for the exemption has not arisen again. If and when the Little Sisters do switch plans or administrators, the status of their benefits exemption will come up.

At some point during oral arguments in March in Zubik v. Burwell, the conglomerate of cases challenging the accommodation process to the birth control benefit, the fact that the Little Sisters had a church plan and would never be subject to having to comply with the benefit did come up. Paul Clement, who represented the nuns, skillfully dodged the question of whether there was a church plan issue for the Little Sisters. Instead of acknowledging that fact—one even established in the record as an assumption the Tenth Circuit Court of Appeals was making earlier in the litigation to move the case along—Clement assured the justices the church plan wasn’t really something the Court needed to concern itself with at the moment.

Maybe that’s because Clement and the nuns were hoping that if nobody noticed the pass given Little Sisters in their challenge to the birth control benefit, nobody would notice when hospitals and nursing homes also argue for the right to provide discriminatory retirement benefits and cite Zubik for their authority to do so. Maybe they didn’t know about the fight brewing in the appellate courts over which enormous corporate entities are shielded from regulatory nondiscrimination laws like provisions in ERISA and the ACA.

That seems unlikely, though, doesn’t it?

While it may be dry as toast, the church plan exemption under ERISA is critically important. As we’ve seen throughout the nonprofit challenges to the birth control benefit, when employers are allowed to opt out, the effect disproportionately falls on poor women and women of color. And the wages offered to hospital and nursing home workers? They hardly are the kind to lift a person up to more stable financial footing. Which is all another way to say that conservatives’ assertions that institutions like Dignity Health fulfill some spiritual mission and should therefore be treated like a church are all smoke and bluster. Instead, these institutions want cover for ongoing attempts to nickel-and-dime their own workers and to discriminate, based on religious beliefs, when it comes to how and whom these institutions serve. And they’re hoping the Roberts Court will give it to them this next term.

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.

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