Last summer, in a 5-4 decision, the Supreme Court decided that certain closely-held for-profit companies, like the arts and crafts chain store Hobby Lobby, could refuse to comply with the health care law’s requirement that health insurance plans cover the full range of birth control methods for women at no extra cost. The Supreme Court concluded that, under the federal Religious Freedom Restoration Act (RFRA), the government had other ways to ensure that women had seamless access to birth control. Specifically, the majority mentioned that there was already an alternative that the Obama Administration granted to non-profit organizations with religious objections.
This alternative is called the “accommodation.” It allows a non-profit organization with religious objections to birth control to opt out of including birth control in its health insurance plan, while ensuring employees or students get the coverage directly from the insurance companies themselves. The government created this accommodation because it sought to respect the non-profits that have religious objections to birth control while still ensuring that women who work at these employers receive this critical benefit.
What is so surprising is that the accommodation is now being challenged. In what is a major head-scratcher case, some non-profit organizations claim that filling out paperwork to opt out of the birth control requirement still burdens their religious exercise.
So what do you need to know about these cases and the Supreme Court’s announcement that it will review these cases this Term?
- The Court has agreed to hear seven petitions brought by various non-profit entities that object to the accommodation (although the petitions are consolidated into one case, known as Zubik v. Burwell). These non-profits include colleges and universities, nursing homes, and schools. I think it’s great they took all of the petitions, because it means the Court will have a range of fact patterns before it. I hope this helps to resolve these challenges once and for all.
- Some say one reason the Court took these cases is that there is a split among the circuit courts of appeals on these challenges. But let’s look at the facts. Seven courts of appeals have firmly rejected the challenges. Only one court has agreed with the non-profits claims. So yes, it’s a split, but the circuit courts of appeals are firmly on the side of ensuring women get the birth control coverage to which they are entitled, directly from their insurance companies.
- You might wonder how these cases differ from Hobby Lobby. One important difference is that, in these cases, the employers are objecting to the process for opting out of the birth control benefit. In Hobby Lobby, the for-profit employers did not have an opt out process, and objected to have to comply with the birth control benefit itself. But one thing that is not different in these cases is the potential impact. Whatever the Court decides here could apply to the for-profits as well. You see, the Obama Administration extended the accommodation to the for-profits after the Hobby Lobby This means that while the Zubik line of cases involve only non-profits, a decision could impact the employees of for-profits as well.
So why do these cases matter? This is the 21st Century and women should have insurance coverage of birth control no matter where they work or go to school (as 55 million women now have). Birth control coverage means that women aren’t facing more health care costs for basic preventive services, they are able to get the method that’s right for them and their circumstances, and they don’t have to give up paying for food or books just to be able to afford the birth control they need.
Birth control is a public health good, it’s health care, and it is central to women’s social and economic security.
I rest my case.