Analysis Law and Policy

Will the Supreme Court Listen to Students About What the Birth Control Benefit Means to Them?

Jessica Mason Pieklo

A brief filed on behalf of individuals affected by efforts to block the contraception benefit in the Affordable Care Act details what's at stake should the Supreme Court rule against the Obama administration's religious accommodation.

The case against the Affordable Care Act’s (ACA) birth control benefit, Zubik v. Burwellis the fourth challenge to the ACA the Supreme Court has heard so far. But for the first time, individuals who depend on the insurance protections in conservatives’ cross-hairs will be able to have their stories heard by the Court directly, during oral arguments in late March. Their testimonies make it clear that stripping the benefit would make accessing care even more precarious—especially for students who become pregnant and find themselves without any accommodations at their institutions.

Zubik is actually a group of cases, each challenging the accommodation available for those religiously affiliated employers who want to opt out of providing their workers insurance coverage for birth control.

Americans United for the Separation of Church and State (AU), a nonprofit legal advocacy organization, successfully intervened as a third party in the contraception challenges on behalf of a University of Notre Dame student in January 2014. The organization recently filed a brief to the Roberts Court on behalf of 240 students, faculty, and staff at religiously affiliated universities—the first of its kind to cite the personal stories of those whose benefits are in danger.

“The voices of affected women have been conspicuously absent from most of the lawsuits seeking to block contraceptive coverage,” said AU’s Senior Litigation Counsel Gregory M. Lipper in a statement following the filing of the brief. “As our brief makes clear, women will suffer concrete and profound harms if religious objectors succeed in blocking their access to vital healthcare.”

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The religiously affiliated institutions challenging the contraception benefit argue that the task of filling out the form to opt out of providing coverage themselves “triggers” or “facilitates” the ability of their employees to get coverage elsewhere. This self-certification process, they claim, makes them “complicit” in the “sin” of facilitating contraception access, in violation of their religious beliefs. But according to the attorneys representing affected students and faculty, the plaintiffs are really arguing for the Court to rule that their religious rights trump the nondiscrimination guarantee built into the contraception benefit.

In other words, the plaintiffs are looking for the Court to grant them the right to exercise their religious beliefs in such a way as to actively and directly harm the rights of third parties like the students, faculty, and employees represented in the amicus brief.

“Whatever views petitioners or others may hold about contraception, they have no right to veto the government’s provision of benefits and thereby to strip these students, faculty, and staff of access to coverage for critical preventive care,” the brief states. “This Court has never before recognized a free-exercise right, under RFRA or otherwise, to so thoroughly undermine the rights of third parties. It should not do so now.”

The brief details the specific challenges already faced by students, employees, and faculty members at religiously affiliated institutions in accessing contraception coverage without discrimination and explains how a ruling against the contraception accommodation would exacerbate those challenges. This is especially true, it says, for students who face unplanned pregnancies. Insurance coverage for abortion services is almost nonexistent. But for those students who decide to continue their pregnancies, the brief says, religious institutions have a long history of refusing to accommodate single, pregnant students.

“Although Title IX of the Education Amendments of 1972 … protects access to educational opportunities for women who are pregnant or have children, compliance is uneven,” the brief states. “Schools often allow professors to set policies for their classes; and some professors refuse to accommodate students who miss deadlines because of pregnancy-related absences.”

“Universities may compound these problems by failing to offer health services and suitable housing for students who are pregnant or have children.”

The brief continues:

And in the last three years, the U.S. Department of Education’s Office for Civil Rights has resolved complaints alleging that colleges have denied pregnant students financial aid, required pregnant students to restart their degree programs after returning from maternity leave, and forced pregnant students to resign or face expulsion.

The combined effect of reduced access to contraception and noncompliance with Title IX’s protections may be especially severe for women at religiously affiliated colleges and universities. That is because Title IX exempts from its requirements “any educational institution which is controlled by a religious organization if the [requirements’] application * * * would not be consistent with the religious tenets of such organization.”

Eligible institutions have received waivers allowing them to expel unmarried students who become pregnant.

That’s right. As AU’s brief makes clear, religious institutions are arguing for the right to deny contraception access to all students, then kick the unmarried ones out of school should they become pregnant.

That’s why AU’s brief and intervention in these cases on behalf of affected students, employees, and faculty is so important. Reproductive rights jurisprudence is dripping with examples of attorneys and judges speaking for patients rather than to patients. Like the personal abortion stories shared in amicus briefs with the Supreme Court in Whole Woman’s Health v. Hellerstedt, hearing directly from those with the most to lose in these cases pushes against hyper-intellectualized narratives that leave real people out of the conversation. Federal judges—almost always men—agonize in opinions about the “difficult choices” women face in terminating a pregnancy. They wax poetic about nonexistent “abortion regret syndrome” and invoke the loftiest of rhetoric to explain why the courts and conservative lawmakers are better equipped to make reproductive health-care choices than women, who just can’t be trusted to negotiate these questions on their own.

Religious conservatives have tried to copy-and-paste those examples from abortion rights cases into the contraception challenges. Instead of pearl-clutching over “potential fetal life,” the religious objectors in these cases are stoking fears of the Obama administration forcing birth control on nuns. But as AU’s brief makes clear, in both the abortion and contraception cases, it really does boil down to the question of trusting women to make medical decisions that are best for them.

“In short, even a single unintended pregnancy may hinder or derail a woman’s opportunity to get an education, advance professionally, and have a career,” the brief states. “While many women will decide to make those sacrifices, contraceptive coverage enables them to decide for themselves whether and when to take on the added burdens.”

But like the never-ending conservative war on abortion rights, the contraception challenges make clear that conservatives will never trust women, as AU puts it, “to decide for themselves whether and when to take on the added burdens” of an unplanned pregnancy. If they did, these institutions would support pregnant and parenting students.

“By allowing women to control the timing and frequency of their pregnancies, reliable contraception has revolutionized women’s ability to make long-term plans about school, work, and marriage, allowing them to achieve personal, educational, and professional goals,” AU’s brief notes.

This truth—that reliable contraception makes women independent of our patriarchal institutions—is at the crux of conservatives’ fears and at the heart of their legal challenges to the ACA.

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