Contraception at the Supreme Court Today: What You Need to Know

Oral arguments in Zubik v. Burwell, a case about contraception and the Affordable Care Act, just got underway this morning at the Supreme Court of the United States.

Show support for women's health & equality this morning at #ZubikVBurwell

Show support for women’s health & equality this morning at #ZubikVBurwell

The petitioners are non-profit organizations that not only object, on religious grounds, to offering their employees insurance plans that provide contraception coverage, but they also object to complying with the simple opt-out mechanism built into the law to accommodate religious objectors. In other words, they are claiming that the act of filing the form to opt-out of the contraception mandate violates their religious freedom under the Religious Freedom Restoration Act. The Religious Freedom Restoration Act (RFRA) is a 1993 law barring any regulation that “substantially” burdens religious practice, unless it furthers a compelling governmental interest that cannot be achieved by less restrictive means.

Their argument is that filing a form to opt-out substantially burdens their religious practice. They want to opt-out of opting out.

The Women’s Law Project signed a friend-of-the-court brief filed by the National Women’s Law Center urging the Court to find that the petitioners’ RFRA challenges have no merit.

Here are some highlights of arguments made in the brief:

  • Filing the opt-out form does not substantially burden religious exercise, as seven of the eight federal circuit courts of appeals to consider the question have so held.

  • The Court has already affirmed that the ACA contraception provision advances a compelling government interest—namely, the promotion of public health.

  • Contraception is necessary to prevent and ameliorate certain health conditions, and is critical for women for whom pregnancy is contraindicated.

  • The ACA mandate eliminates cost as a barrier to contraception and mitigates gender discrimination that has long been built into the health insurance system in the United States. Before the advances of the ACA, women paid significantly more than men for health insurance that did not meet their needs. The out-of-pocket costs associated with contraceptive care and related services contributed to this disparity.

  • The contraception regulations also enable women to control their reproductive lives, providing them equal opportunities to participate in society, achieve their educational and career goals and remain economically secure.

  • Studies show the significant upfront costs of some forms of contraception are a deterrent for women purchasing them.

The Women’s Law Project joined 68 other organizations in signing on to the amici brief filed by the National Women’s Law Center. Medical and health organizations filed additional briefs urging the Court to find the petitioners’ arguments have no merit, including the American College of Obstetricians and Gynecologists, Physicians for Reproductive Health, the American Academy of Family Physicians, the American Nurses Association, and the American Academy of Pediatrics.

These religious objectors seek not only to deprive female employees of the contraception benefit as intended under the Affordable Care Act, but by refusing to opt-out of opting out, they are seeking to refuse to enable the government to route the coverage to the employee in coordination with the insurance company. This refusal would force some women employed by objectors who need contraception services to purchase health insurance independent of their employer-sponsored plans. That means some women, simply because of gender, reproductive capacity and medical condition, may be forced to pay more for insurance than their coworkers.

This situation promotes not only unequal costs, but unequal pay: Health insurance is part of an employer’s compensation package; compensation would be reduced for women forced out of the employer-sponsored insurance system altogether.

It is worth noting that forcing certain employees to purchase insurance plans elsewhere would, not coincidentally, create a financial benefit for the employer.

Read more about Zubik v. Burwell

Read the friend-of-the-court brief filed by the National Women’s Law Center and signed by Women’s Law Project and other advocates for women’s health.

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The Women's Law Project creates a more just and equitable society by advancing the rights and status of all women throughout their lives. To this end, we engage in high-impact litigation, advocacy, and education.
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