Over 100 lawsuits have been filed in federal court challenging the Affordable Care Act’s birth control coverage benefit. The benefit requires new health plans to include coverage for the full range of FDA-approved methods of birth control, sterilization, and related education and counseling at no cost-sharing.
Both for-profit companies and non-profit organizations have challenged the birth control coverage requirement.
Status of Non-Profit Cases
- Non-profit organizations filing lawsuits are objecting to the “accommodation” given to them by the Administration. The accommodation allows a non-profit that holds itself out as religious and has religious objections to birth control to refuse to provide health insurance coverage of birth control, while ensuring that the non-profit’s employees receive the coverage without cost-sharing directly from the insurance company. The non-profit must notify either its insurance company or the federal government of its objection.
- 43 non-profit cases are pending (including 4 cases that include both for- and non-profit plaintiffs), of a total of 68 cases that have been filed by non-profit organizations.
Seven of the circuit courts to consider these cases have disagreed with the non-profits’ arguments that the accommodation violates the law:
- DC Circuit in Priests for Life/Archbishop of Washington (Nov. 14, 2014);
- 2d Circuit in Catholic Archdiocese of New York (Aug. 6, 2015);
- 3d Circuit in Geneva College/Persico/Zubik (Feb. 11, 2015);
- 5th Circuit in East Texas Baptist Univ./Univ. of Dallas/Diocese of Beaumont/Diocese of Fort Worth (June 22, 2015);
- 6th Circuit in Michigan Catholic Conference and Catholic Diocese of Nashville (Aug. 21, 2015);
- 7th Circuit in Wheaton College (July 1, 2015), University of Notre Dame (May 19, 2015), and Diocese of Fort Wayne-South Bend (Sept. 4, 2015);
- 10th Circuit in Little Sisters of the Poor/Southern Nazarene Univ./Reaching Souls International (July 14, 2015).
- One circuit court that has considered these cases agreed with the non-profits’ arguments that the accommodation violates the law. On Sept. 17, 2015 the 8th Circuit affirmed the district court decision in Sharpe Holdings Inc. granting the non-profit organizations a preliminary injunction.
- The Supreme Court has intervened in three non-profit cases, allowing the non-profit to notify HHS instead of the insurance company of its objections to the accommodation. The Court has made clear that these orders should not be construed as the Court’s views on the merits of the non-profits’ claims.
Status of For-Profit Cases
For-profit companies ranging from a mining company to the Hobby Lobby crafts store chain to an HVAC company have objected to including coverage of birth control in their health insurance plans.
- On June 30, 2015, the Supreme Court issued its decision in the Hobby Lobby case. The 5-4 decision held that the Religious Freedom Restoration Act (RFRA) allows some closely-held for-profit companies to get out of including birth control in the employer-based health insurance plan if the company’s owner has a religious objection to such coverage.
- Since that decision, the lower courts have applied the Hobby Lobby decision to 43 of the 50 for-profit cases that have been filed.
- On July 10, 2015, responding to the Hobby Lobby decision, the Administration finalized a rule expanding the “accommodation” to certain closely-held for-profit companies. Closely-held for-profit companies that qualify for the accommodation will not be required to provide insurance coverage of birth control in the employer health plan. Instead, employees will get birth control coverage services directly from the insurance company. The companies that have challenged the birth control coverage requirement will have to comply with the accommodation, including the 42 that have received court orders based on the Hobby Lobby decision.
Status of Other Cases
There have been several other challenges filed involving the contraceptive coverage provision. One case, which is still pending, was brought by an individual who objects to having health insurance that includes coverage for birth control.
The charts detail these cases. The first chart contains the non-profit cases; the second contains challenges that include both for- and non-profits; the third contains the for-profit cases; and the fourth contains other related cases.
Each chart is organized by the region of the country in which the case was filed, according to the boundaries of the courts of appeals. The cases that have been heard by the Supreme Court are highlighted in yellow. Closed cases are highlighted in grey.
For more information about the health care law’s birth control coverage benefit and the legal claims at issue in the cases, please visit Preventive Services, Including Birth Control Coverage, Under the Health Care Law.