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Court Battle Against Obamacare’s Birth Control Benefit Isn’t Over

Jessica Mason Pieklo

The birth control benefit in Obamacare remains in effect despite Republican efforts to repeal the law.

Religiously-affiliated nonprofits remain wrapped up in litigation over the Affordable Care Act’s (ACA) birth control benefit, despite assurances by the Trump administration that the fight over mandating nondiscriminatory health insurance benefits is over. 

The cases remain alive in the appellate circuits after the U.S. Supreme Court in Zubick v. Burwell told the Obama administration, which at the time was defending the benefit from religiously-affiliated nonprofits challenging the process for receiving an accommodation, to come to some kind of agreement. That agreement was to craft a process where the religious objection concerns of the nonprofit challengers would be accommodated but without causing women to lose access to insurance without co-pay as required under the law. 

Attorneys for the nonprofits and the Trump administration suggested in court filings late last month that they were close to settling the lawsuits.

The religiously-affiliated nonprofits challenging the benefit argue that notifying the federal government they have a religious objection to contraception violates the Religious Freedom Restoration Act (RFRA), the federal statute at the heart of the birth control cases. The nonprofits claim that notifying the government of their objection “triggers” access to contraception coverage for workers by having the federal government step in and coordinate that coverage. That act, the challengers claim, makes them complicit in the sin of using contraception. 

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The Trump administration, however, has stopped defending the benefit as Republicans in Congress continue their attempts to repeal the ACA, or Obamacare. Trump has instructed Health and Human Services Secretary Tom Price to begin the administrative rule-making process for unwinding the benefit. That process will take months. 

Neither attorneys for the nonprofit challengers nor for the Trump administration indicated to the court how they intended to resolve the legal challenges to the benefit while it remains a law the executive branch has defended for years. 

The next update to the courts is due by September 12.

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