Women’s Contraceptive Coverage Under Attack Again

Photo: Amber B McN (CC)
Photo: Amber B McN (CC)
By Amie Newman |

On March 23, the now eight-member Supreme Court will meet to debate and discuss a critical women’s reproductive and sexual health care issue — again. This time it’s contraceptive coverage for women.

The case that will be heard is Zubik v. Burwell. It addresses religiously affiliated nonprofits’ contention that their religious beliefs are being violated, even with the current accommodation that allows them to opt-out of providing health insurance coverage that includes contraception for female employees.  

When the Affordable Care Act (ACA) was signed into law in 2010, millions of women across the country breathed a collective sigh of relief. The law signaled a new era of equity for health insurance coverage of women’s health care needs. Among a host of positive changes, health plans could no longer deny coverage to pregnant women (as many did, with the reasoning that pregnancy was a “pre-existing condition”). The law also required private insurers to cover all FDA-approved contraceptive methods.

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The mandate that birth control would be entirely covered by health insurance was a huge boon for women’s health. Cost has always been a major barrier for women seeking birth control options. Removing the financial obstacle helps women choose the method that is right for them based on their individual circumstances and health needs, rather than on what they can afford.

In an article in The New York Times last year on the ACA’s impact on women’s birth control spending, pilot studies noted that when cost was not an issue, women tended to use the most effective options, including IUDs and other long-acting methods.

After the ACA passed,  some businesses immediately raised objections to this contraceptive mandate, citing religious opposition under the Reproductive Freedom of Religion Act (RFRA). Remember Hobby Lobby?

 In 2014, the Supreme Court met to discuss the Burwell v. Hobby Lobby case and in a massive upset for women’s health and rights, ruled in favor of Hobby Lobby. The decision protects businesses that oppose birth control on religious grounds from having to provide health insurance coverage that includes contraception for their female employees.  The only action a corporation is required to take in order to opt out is to fill out a short form.  

According to the Kaiser Family Foundation (KFF), the insurers or third-party administrators who provide the health plans to the corporation then work directly with the employee to find a separate, contraception-only plan.

Unfortunately, that’s not the end of the story. Zubick v. Burwell combines a group of cases representing nonprofits, universities, individuals and others who assert that despite the accommodation for religious corporations, the federal regulations place a “substantial burden” on their religious beliefs.

Specifically, they claim that when they are compelled to fill out the form that notifies the insurer or third party that they want to opt out of providing the coverage, it triggers a process that ultimately ends with a woman receiving coverage for contraception — a result they still find “morally objectionable.”

The government, for its part, according to KFF, says it’s not the notification that triggers the coverage. It’s the federal law. In other words, the insurer is mandated to cover a woman’s birth control regardless of the form the corporations fill out.

I won’t get deeper into the legal minutiae because, honestly, the crux of the issue is simple: women’s reproductive and sexual health and rights are at stake. The Guttmacher Institute, in partnership with George Washington University Professor Sara Rosenbaum, filed an amicus brief in which they note that the government has a compelling interest in ensuring seamless contraceptive coverage. The brief also calls out the importance of family planning coverage for women’s health and lives:

Removing cost barriers to effective contraception provides women equal access to essential health care, reduces women’s risk of unintended pregnancy, decreases the need for abortion, promotes women’s education and workforce participation, and enhances the health and economic security of women and families.

Oral arguments for Zubik v. Burwell start on March 23rd. They will be given in front of a Supreme Court with only eight justices; making a 4-4 split decision possible. If this happens, the previous decisions of multiple federal courts of appeal — which have sided with the government (noting that the accommodation is not a substantial burden) — would stand.  However, the ruling would not be enforceable or upheld in select states for which one circuit court ruled in favor of the nonprofits. Alternatively, the Supreme Court could choose to revisit the issue when there are nine justices.   

If the court rules in favor of the nonprofit corporations, it means that they would be exempt from having to pay for contraceptive coverage for their female employees, leaving the women who work for these organizations without insurance coverage for their contraception — and having to figure out how to pay for important health care services out of their own pockets.

If you’re interested in learning more, Kaiser Family Foundation and RH Reality Check have in-depth information on the case and what’s at stake for contraceptive coverage more broadly and for women across the country who rely on insurance to pay for their birth control.

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