Commentary Contraception

The Right’s Plan to Kill the Birth Control Benefit

Imani Gandy & Sharona Coutts

Why is the Becket Fund expending so much time and money fighting against filling out a form—a requirement that, at first blush, seems like no big deal? As you’ll see, the implications of this brilliant legal strategy are anything but boring.

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

We all hate paperwork, and in particular, it’s fair to say that most of us really hate health insurance paperwork.

But the lawyers for the Becket Fund for Religious Liberty—the nonprofit law firm behind many of the legal challenges to the Affordable Care Act (ACA)—seem to have taken their hatred of paperwork to a new level. They hate health insurance paperwork so much that they have sent multiple cases to the U.S. Supreme Court to fight against filling out a single form that would allow them to opt out of the ACA’s birth control benefit.

The details are boring. Really, really boring. But as comedian John Oliver recently said, “If you want to do something evil, hide it in something boring.”

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Why is the Becket Fund expending so much time and money fighting against filling out a form—a requirement that, at first blush, seems like no big deal? As you’ll see, the implications of this brilliant legal strategy are anything but boring. Indeed, this strategy has the potential to be the string that, when pulled, causes the ACA’s birth control benefit to unravel.

The Becket Fund’s most famous client is Hobby Lobby, the arts and crafts chain that took its objections to the birth control benefit all the way to the Supreme Court, and won.

In its controversial ruling last month, the Court’s majority decided that closely held corporations, such as Hobby Lobby, cannot be forced to provide health insurance policies that will cover certain contraceptives without an additional co-pay, because doing so would violate the company’s religious freedom. Hobby Lobby didn’t object to all contraceptives, but rather to those which it believed—sincerely, but wrongly—to cause abortions.

Key to the majority’s decision was the notion that the birth control benefit not only “substantially burdened” an employer’s religious freedoms under the Religious Freedom Restoration Act (RFRA), but also that the policy did not do so in the “least restrictive” way possible.

This balancing test is a fundamental element of RFRA; when deciding whether or not a particular law violates RFRA, a court must ask whether the government has a compelling interest in passing that particular law. If it does, the next question is whether the law substantially burdens religious freedom. And if the answer to that question is “yes,” then the court asks whether the law is the “least restrictive means” of achieving the government’s objective.

Even before the Affordable Care Act was passed, the Obama administration had carved out some exceptions to the birth control benefit for religious employers such as churches and evangelical schools.

The administration created a so-called accommodation for these groups, whereby religious employers could avoid the birth control benefit and instead saddle their insurer with the responsibility of providing contraceptive access. They could do this by simply filling out a form—known as Form 700—which employers submit to their health insurance issuer (for insured health plans) or third-party administrator (for self-insured plans), to indicate their view that their religious beliefs preclude them from participating in an insurance program that covers contraception. Once Form 700 has been submitted, the insurer or administrator will provide contraception coverage to an employee in the company’s stead.

But the administration’s desire to be so accommodating of religious liberty may be what dooms large parts of the health reform law, certainly as it relates to some forms of birth control.

In Hobby Lobby, the majority said that the exception for nonprofit entities showed that the government could have achieved its goal—of ensuring that employees had access to birth control without paying an additional co-pay—without requiring Hobby Lobby to provide health insurance plans that included such access. It could have allowed Hobby Lobby to fill out Form 700 and elect for someone else to provide the birth control, just as the nonprofits were able to do. Had the government done that, it would have won the case.

Or at least, that was what was heavily suggested by the majority’s opinion.

Just days later, the Court delivered a second punch to reproductive rights.

Wheaton College, another of the Becket Fund’s clients fighting the Affordable Care Act, argued that requiring the school to fill out Form 700 would also violate the nonprofit’s religious freedom, because, it said, filling out the form would make it complicit in the very behavior deemed sinful by Christian teachings.

“What Wheaton objects to is executing the government’s Form to designate, obligate, and incentivize its third-party administrator to provide religiously objectionable drugs on its behalf,” wrote Wheaton College in a brief filed with the Supreme Court.

Got that? By filling out a form to opt out of providing certain types of birth control, these groups—64 in total, seven of whom are represented by the Becket Fund—still say they are being forced to be complicit in sin, because their act of opting out triggers another process by which a woman can obtain her birth control.

The Becket Fund makes almost the same argument in briefs for its other clients, such as Reaching Souls International and Truett-McConnell College, religious nonprofits based in Oklahoma and Texas, respectively, whose cases are currently winding their way through the courts. Their argument is that what seems like a fairly meaningless task—filling out a form—might require these organizations to violate their faith.

Bizarre as that may sound, based on the majority decision to grant Wheaton College its injunction, it appears that the Supreme Court may agree.

Justice Sonia Sotomayor, however, dissented, and implied that she sees exactly what the Becket Fund’s real endgame is.

“It may be that what troubles Wheaton is that it must participate in any process the end result of which might be the provision of contraceptives to its employees,” wrote Sotomayor in her dissent.

Precisely. Wheaton College does not want anyone to access birth control methods that it finds objectionable.

To really understand the underlying strategy here, you need only to game out what will happen if the Supreme Court holds that employers cannot be forced to fill out Form 700.

Justice Sotomayor did just that in her Wheaton College dissent.

In granting Wheaton College its injunction, the Court’s majority said that the school doesn’t have to fill out Form 700; it need only notify the Department of Health and Human Services in writing that it wants to opt out of the birth control benefit.

As Justice Sotomayor astutely noted, however, the majority’s interim order did not require Wheaton College to tell the department who its insurer is. That’s fine for the religious nonprofits that have already sued the government, since the department already knows who their insurers are and can easily work with them to make sure that birth control is available to the women who want it.

But what about the organizations that will seek a religious exemption in the future but who have not sued the government? How will the department figure out who their insurers are? And how will the department administer the birth control benefit policy to guarantee access to contraception without an additional co-pay for the employees of those organizations?

The only possible way would be, Justice Sotomayor argues, for the department to spend months and maybe years creating a costly and time-consuming database of every exempt organization and their corresponding insurer. The magnitude of such an undertaking is unfathomable. (Emphasis added.)

Does the Court intend for HHS [the department] to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or third-party administrator nationwide?

Justice Sotomayor understands the coy strategy of the five male justices on the Court: This isn’t a case about balancing the right to contraception against the right to religious liberty. It’s a case about allowing Wheaton College’s beliefs about the effect of its actions to trump the democratic interest in allowing the government to enforce the law.

It would be death by bureaucracy for the birth control benefit.

It’s a smart strategy, because ultimately, if the government’s accommodation is a violation of religious liberty when applied to Wheaton College, then it is also a violation of religious liberty when applied to Hobby Lobby, or any religious entity or closely held corporation.

In other words, Hobby Lobby won the argument that it—a for-profit company—has religious rights. Now, the Becket Fund’s other clients appear to be winning the argument that their religious rights preclude the government from forcing them to fill out the requisite form in order to administer the birth control benefit. If Wheaton et al. win, then any closely held corporation claiming a religious objection to the birth control benefit could effectively boycott the benefit, and that part of the health law would likely become impossible to administer.

Which is why the Wheaton College injunction caused so much consternation from commentators, coming as it did just after the Hobby Lobby majority swore that their decision would not impede women’s reproductive rights.

“The effect of the HHS-created accommodation on the women employed by Hobby Lobby and other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost-sharing,” proclaimed the Court in its Hobby Lobby decision.

These statements seem as close to a solemn promise as we’re likely to see from this male-dominated Supreme Court that no matter what happens, women will still have contraceptive access without paying an additional co-pay.

But the question remains: how?

Ironically, many of the Becket Fund’s clients have argued that the least restrictive means for providing contraceptive access to women would be for the government to provide it to women directly.

By arguing so ferociously against the Obama administration’s contraceptive coverage policy, the Becket Fund has accidentally proven that a single-payer system would be superior to a cumbersome mish-mash of insurance regulations and exceptions to them.

And given conservative rantings against government take-over of health care, this may be greatest irony of all.

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.

News Law and Policy

Texas Lawmaker’s ‘Coerced Abortion’ Campaign ‘Wildly Divorced From Reality’

Teddy Wilson

Anti-choice groups and lawmakers in Texas are charging that coerced abortion has reached epidemic levels, citing bogus research published by researchers who oppose legal abortion care.

A Texas GOP lawmaker has teamed up with an anti-choice organization to raise awareness about the supposed prevalence of forced or coerced abortion, which critics say is “wildly divorced from reality.”

Rep. Molly White (R-Belton) during a press conference at the state capitol on July 13 announced an effort to raise awareness among public officials and law enforcement that forced abortion is illegal in Texas.

White said in a statement that she is proud to work alongside The Justice Foundation (TJF), an anti-choice group, in its efforts to tell law enforcement officers about their role in intervening when a pregnant person is being forced to terminate a pregnancy. 

“Because the law against forced abortions in Texas is not well known, The Justice Foundation is offering free training to police departments and child protective service offices throughout the State on the subject of forced abortion,” White said.

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White was joined at the press conference by Allan Parker, the president of The Justice Foundation, a “Christian faith-based organization” that represents clients in lawsuits related to conservative political causes.

Parker told Rewire that by partnering with White and anti-choice crisis pregnancy centers (CPCs), TJF hopes to reach a wider audience.

“We will partner with anyone interested in stopping forced abortions,” Parker said. “That’s why we’re expanding it to police, social workers, and in the fall we’re going to do school counselors.”

White only has a few months remaining in office, after being defeated in a closely contested Republican primary election in March. She leaves office after serving one term in the state GOP-dominated legislature, but her short time there was marked by controversy.

During the Texas Muslim Capitol Day, she directed her staff to “ask representatives from the Muslim community to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws.”

Heather Busby, executive director of NARAL Pro-Choice Texas, said in an email to Rewire that White’s education initiative overstates the prevalence of coerced abortion. “Molly White’s so-called ‘forced abortion’ campaign is yet another example that shows she is wildly divorced from reality,” Busby said.

There is limited data on the how often people are forced or coerced to end a pregnancy, but Parker alleges that the majority of those who have abortions may be forced or coerced.

‘Extremely common but hidden’

“I would say that they are extremely common but hidden,” Parker said. “I would would say coerced or forced abortion range from 25 percent to 60 percent. But, it’s a little hard be to accurate at this point with our data.”

Parker said that if “a very conservative 10 percent” of the about 60,000 abortions that occur per year in Texas were due to coercion, that would mean there are about 6,000 women per year in the state that are forced to have an abortion. Parker believes that percentage is much higher.

“I believe the number is closer to 50 percent, in my opinion,” Parker said. 

There were 54,902 abortions in Texas in 2014, according to recently released statistics from the Texas Department of State Health Services (DSHS). The state does not collect data on the reasons people seek abortion care. 

White and Parker referenced an oft cited study on coerced abortion pushed by the anti-choice movement.

“According to one published study, sixty-four percent of American women who had abortions felt forced or unduly pressured by someone else to have an unwanted abortion,” White said in a statement.

This statistic is found in a 2004 study about abortion and traumatic stress that was co-authored by David Reardon, Vincent Rue, and Priscilla Coleman, all of whom are among the handful of doctors and scientists whose research is often promoted by anti-choice activists.

The study was cited in a report by the Elliot Institute for Social Sciences Research, an anti-choice organization founded by Reardon. 

Other research suggests far fewer pregnant people are coerced into having an abortion.

Less than 2 percent of women surveyed in 1987 and 2004 reported that a partner or parent wanting them to abort was the most important reason they sought the abortion, according to a report by the Guttmacher Institute.

That same report found that 24 percent of women surveyed in 1987 and 14 percent surveyed in 2004 listed “husband or partner wants me to have an abortion” as one of the reasons that “contributed to their decision to have an abortion.” Eight percent in 1987 and 6 percent in 2004 listed “parents want me to have an abortion” as a contributing factor.

‘Flawed research’ and ‘misinformation’  

Busby said that White used “flawed research” to lobby for legislation aimed at preventing coerced abortions in Texas.

“Since she filed her bogus coerced abortion bill—which did not pass—last year, she has repeatedly cited flawed research and now is partnering with the Justice Foundation, an organization known to disseminate misinformation and shameful materials to crisis pregnancy centers,” Busby said.  

White sponsored or co-sponsored dozens of bills during the 2015 legislative session, including several anti-choice bills. The bills she sponsored included proposals to increase requirements for abortion clinics, restrict minors’ access to abortion care, and ban health insurance coverage of abortion services.

White also sponsored HB 1648, which would have required a law enforcement officer to notify the Department of Family and Protective Services if they received information indicating that a person has coerced, forced, or attempted to coerce a pregnant minor to have or seek abortion care.

The bill was met by skepticism by both Republican lawmakers and anti-choice activists.

State affairs committee chairman Rep. Byron Cook (R-Corsicana) told White during a committee hearing the bill needed to be revised, reported the Texas Tribune.

“This committee has passed out a number of landmark pieces of legislation in this area, and the one thing I think we’ve learned is they have to be extremely well-crafted,” Cook said. “My suggestion is that you get some real legal folks to help engage on this, so if you can keep this moving forward you can potentially have the success others have had.”

‘Very small piece of the puzzle of a much larger problem’

White testified before the state affairs committee that there is a connection between women who are victims of domestic or sexual violence and women who are coerced to have an abortion. “Pregnant women are most frequently victims of domestic violence,” White said. “Their partners often threaten violence and abuse if the woman continues her pregnancy.”

There is research that suggests a connection between coerced abortion and domestic and sexual violence.

Dr. Elizabeth Miller, associate professor of pediatrics at the University of Pittsburgh, told the American Independent that coerced abortion cannot be removed from the discussion of reproductive coercion.

“Coerced abortion is a very small piece of the puzzle of a much larger problem, which is violence against women and the impact it has on her health,” Miller said. “To focus on the minutia of coerced abortion really takes away from the really broad problem of domestic violence.”

A 2010 study co-authored by Miller surveyed about 1,300 men and found that 33 percent reported having been involved in a pregnancy that ended in abortion; 8 percent reported having at one point sought to prevent a female partner from seeking abortion care; and 4 percent reported having “sought to compel” a female partner to seek an abortion.

Another study co-authored by Miller in 2010 found that among the 1,300 young women surveyed at reproductive health clinics in Northern California, about one in five said they had experienced pregnancy coercion; 15 percent of the survey respondents said they had experienced birth control sabotage.

‘Tactic to intimidate and coerce women into not choosing to have an abortion’

TJF’s so-called Center Against Forced Abortions claims to provide legal resources to pregnant people who are being forced or coerced into terminating a pregnancy. The website includes several documents available as “resources.”

One of the documents, a letter addressed to “father of your child in the womb,” states that that “you may not force, coerce, or unduly pressure the mother of your child in the womb to have an abortion,” and that you could face “criminal charge of fetal homicide.”

The letter states that any attempt to “force, unduly pressure, or coerce” a women to have an abortion could be subject to civil and criminal charges, including prosecution under the Federal Unborn Victims of Violence Act.

The document cites the 2007 case Lawrence v. State as an example of how one could be prosecuted under Texas law.

“What anti-choice activists are doing here is really egregious,” said Jessica Mason Pieklo, Rewire’s vice president of Law and the Courts. “They are using a case where a man intentionally shot his pregnant girlfriend and was charged with murder for both her death and the death of the fetus as an example of reproductive coercion. That’s not reproductive coercion. That is extreme domestic violence.”

“To use a horrific case of domestic violence that resulted in a woman’s murder as cover for yet another anti-abortion restriction is the very definition of callousness,” Mason Pieklo added.

Among the other resources that TJF provides is a document produced by Life Dynamics, a prominent anti-choice organization based in Denton, Texas.

Parker said a patient might go to a “pregnancy resource center,” fill out the document, and staff will “send that to all the abortionists in the area that they can find out about. Often that will stop an abortion. That’s about 98 percent successful, I would say.”

Reproductive rights advocates contend that the document is intended to mislead pregnant people into believing they have signed away their legal rights to abortion care.

Abortion providers around the country who are familiar with the document said it has been used for years to deceive and intimidate patients and providers by threatening them with legal action should they go through with obtaining or providing an abortion.

Vicki Saporta, president and CEO of the National Abortion Federation, previously told Rewire that abortion providers from across the country have reported receiving the forms.

“It’s just another tactic to intimidate and coerce women into not choosing to have an abortion—tricking women into thinking they have signed this and discouraging them from going through with their initial decision and inclination,” Saporta said.

Busby said that the types of tactics used by TFJ and other anti-choice organizations are a form of coercion.

“Everyone deserves to make decisions about abortion free of coercion, including not being coerced by crisis pregnancy centers,” Busby said. “Anyone’s decision to have an abortion should be free of shame and stigma, which crisis pregnancy centers and groups like the Justice Foundation perpetuate.”

“Law enforcement would be well advised to seek their own legal advice, rather than rely on this so-called ‘training,” Busby said.