The Obama administration announced it plans to issue new interim rules to accommodate those religious nonprofits that object to complying with the birth control benefit under the Affordable Care Act by August 22.
The statement was part of a status report filed by the administration with the U.S. Court of Appeals for the Tenth Circuit in connection with a handful of legal challenges by religiously affiliated nonprofits like Little Sisters of the Poorcurrently before the federal appeals court. The administration told the appeals court it was issuing the new rules in light of the U.S. Supreme Court’s order in the Wheaton College case, which held the evangelical Christian college out of Illinois did not have to complete the paperwork required to qualify for the accommodation because filling out the paperwork substantially burdened the college’s religious beliefs. The Wheaton College order came just after the Roberts Court ruled closely held for-profit companies could object to the contraception benefit on religious grounds as well, relying in part on the existence of the nonprofit accommodation to support its conclusion the Obama administration had other less restrictive means of providing contraceptive coverage for workers.
In its status report, the Obama administration suggested that whether or not the legal challenges continue after the new rules are announced will be entirely up to the plaintiffs, and asked they notify the court by September 2 of their intentions to either continue or drop their challenges.
Meanwhile, a different federal appeals court ruled that Fresh Unlimited Inc., the parent company of the secular for-profit Freshway Foods, won’t have to provide contraception coverage for its employees. The one-page order in the Gilardi v. the U.S. Department of Health and Human Services case is believed to be the first to apply the Supreme Court’s Hobby Lobby decision. The order sends the case back to the district court, according to news reports, with instructions to issue an order that grants an exemption and to consider whether to extend it to the Gilardis individually.
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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.
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.
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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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.