Birth Control and Women – That’s What Zubik is Really About

Leading up to oral arguments in Zubik v. Burwell tomorrow, a lot of the media coverage has framed this case as pitting the objecting employers versus the government (one article includes that exact opener: “a case pitting nuns against the Department of Health and Human Services’ contraceptive mandate.”) Notably, there’s one perspective that is missing from this framing: the women whose health care hangs in the balance. These women—the female employees, the dependents, and the students who have health insurance through the objecting employers and schools—aren’t in the picture, both literally and figuratively.

So why aren’t reporters talking about the elephant in the room, i.e., these women who could be denied health insurance that covers a basic health care need? Unfortunately, because the affected employees, dependents, and students are not a named party in this case, they often are left out of the media’s coverage of the case. And, even more unfortunately, the same thing happened when the Supreme Court decided Hobby Lobby. In that case, women were left out of the picture when a majority of the Court held that the religious beliefs of bosses trumped their employee’s access to critical preventive health care.

But we know this case is more than just about the objecting employers and the government.

This case goes to the core of women’s health and lives. Here’s why:

Women use birth control. I am not just talking a few women here or there and just using it for a year or so. The vast majority of women uses birth control and uses it for the majority—three decades worth—of their reproductive lives.

Birth control care happens alongside women’s other care. The birth control method that is right for a woman depends on her other health care issues and needs. But if the bosses and schools are successful in this case, a woman would be forced into a patchwork system to access birth control, separate and distinct from how she receives her other health care needs. Say, for example, a woman visits her gynecologist for an annual visit. She may get a pap smear, have a breast exam, then screened for sexually transmitted infections, but once the conversation turns to the obvious question about birth control needs, the provider would have to stop the discussion. That same woman would have to set up a different appointment, with a different provider, go through the same medical history she went over with her gynecologist, just to get birth control. And, after all of that, it’s not even guaranteed she will get the birth control method she needs because she is excluded from the ACA’s birth control benefit.

This case affects real women, with real lives. Just because you haven’t heard from these women, doesn’t mean they aren’t out there. It’s understandable we aren’t hearing from the women who would be impacted—they don’t want to threaten their job and livelihood by speaking out against their bosses. While the other side has tried to paint a favorable picture of the bosses, the truth is that they are still bosses. They have the power in the employer-employee relationship, including the power to fire women who speak out about their lack of birth control coverage. Here at the National Women’s Law Center, we have heard from the women who work or go to school at the non-profits and schools that claim religious objections to birth control. These women want and need insurance coverage of birth control, but are afraid to speak out. They have families they want to protect. They have jobs they love. No woman should have her livelihood threatened just to state what is easy to surmise, women want insurance coverage of birth control.

Oh, and speaking out about birth control coverage would mean also talking about one’s reproductive health care. When Sandra Fluke did just that a few years ago, she was called a “slut” by Rush Limbaugh. It doesn’t take a genius to understand why women may want to keep private their reproductive health care decisions.

Not having insurance coverage of birth control is actually a big deal. Lacking insurance coverage means women have to completely pay out of pocket for a basic health care item they will need for three decades. Insurance coverage of birth control could mean the difference between getting the method a woman needs versus going completely without. It could mean skipping pills or using less effective methods of birth control. All of these outcomes increase a woman’s risk of unintended pregnancy.

For women in low-paying jobs, the lack of birth control coverage is particularly critical. One of the plaintiffs in this case is the Little Sisters of the Poor, an order of nuns that operates nursing homes. While a lot of reporters’ focus has been on these nuns, there has been no coverage of the employees who work at the nursing homes. For example, no one has paid attention to the fact that aides in nursing, personal care, psychiatric, and home health are typically paid less than $12 an hour. Why does this matter? Well, as we explain in our amicus brief, a nursing assistant who works full time, year round at about $12 per hour has monthly pretax earnings of $2,000—earnings that can fall short in covering typical monthly expenses. The simple truth is that women have other out-of-pocket costs besides paying for birth control, including groceries, rent, transportation, and child care. These costs add up; sometimes, they can eat up an entire paycheck. When a woman can’t even meet her basic needs, how can she add the costs of birth control onto that?

Birth control is central to women’s health, equality, and economic security. Women deserve insurance coverage of birth control no matter where they work or go to school. A contrary result is discrimination plain and simple. It’s time for reporters and bosses to include these women in the picture—because it’s these women whose lives are at stake here.
So, in closing: this case is important to women.
One more time, this case is important to women.
And once more: this case is important to women.