Another Year, Another Round of Attacks on Contraception Coverage

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Analysis Law and Policy

Another Year, Another Round of Attacks on Contraception Coverage

Jessica Mason Pieklo

2015 proved conservatives just won't quit with their attempts to undo the birth control benefit in the Affordable Care Act.

Congress passed the Affordable Care Act (ACA) in 2010, guaranteeing for the first time ever that most employer-provided health care insurance plans could no longer discriminate in coverage on the basis of gender. Yet despite the wide carve-out in the law for churches and houses of worship, as well as the generous accommodation process for religiously affiliated nonprofits to opt out of its contraceptive coverage requirement, conservatives have not stopped fighting the ACA since.

Lawmakers, joined by conservative religious leaders like the United States Conference of Catholic Bishops, have argued—first to Congress and then to the courts—that treating contraception as a preventive service that employees can access in their health-care plans without additional costs or co-pays violates employers’ religious rights. In 2013, the Supreme Court ruled in Hobby Lobby v. Burwell that secular, for-profit companies could raise religious objections to the birth control benefit and opt out of coverage. Even so, the conservative attacks on the benefit have not subsided. In fact, they’ve amplified: Emboldened by the Roberts Court, lawmakers are pushing even more restrictions on contraception access at the state level, while anti-choice litigators continue to lob lawsuits at what remains of the benefit. Here are the key challenges to the birth control benefit conservatives made in 2015, and how they’ll extend into the coming year:

Testing the Limits of Hobby Lobby at the Roberts Court

Justice Anthony Kennedy’s decision with the conservative majority in Hobby Lobby joined in the overall ruling that secular, for-profit companies can raise religious objections under the federal Religious Freedom Restoration Act (RFRA). To justify the Court’s conclusion that the national arts and crafts chain could avoid complying with the birth control benefit, Justice Kennedy noted the government had already created a process for accommodating other businesses. That accommodation process, the Court ruled in Hobby Lobby, should be extended to for-profit and nonprofit businesses alike. But even though the Court in Hobby Lobby relied on the existence of the accommodation, it didn’t specifically rule whether the accommodation process itself complied with RFRA. This summer, it will. 

Roe has collapsed and Texas is in chaos.

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The Roberts Court agreed to take up seven cases for 2016, including that of Little Sisters of the Poor, one of the first nonprofits to challenge the accommodation process. Those organizations argue that the task of completing the government’s form that self-certifies them as religious employers—and makes them eligible for an accommodation to the benefit—“triggers” or “facilitates” the ability of their employees to get contraceptive coverage elsewhere. That, the plaintiffs argue, makes them complicit in what they believe to be a sinful act: supporting contraception. Such an act, they say, violates their rights under RFRA.

If they are successful, it will expand the number of businesses that can opt out of the birth control benefit. In addition to the immediate impact of those employees and students that would lose out, in the long term, contraception coverage would be more expensive and difficult to access generally.

Another Coverage Rule, Another Likely Legal Challenge

Part of the legal fallout from the Hobby Lobby decision has been a whole new round of administrative rule-making by the Obama administration designed to implement the Court’s order and to create a process for accommodating religious objections of other secular, for-profit companies. Conservatives should view this process as a good thing, right? After all, the government is creating a loophole for businesses like car dealerships and food processing facilities to avoid the tax penalty of not complying with the ACA.

But instead of viewing this as a win, anti-choice conservatives have used it as a way to lay the groundwork for a whole new round of legal challenges to the benefit. Religiously affiliated nonprofits like Little Sisters of the Poor rejected revisions to the accommodation process by the administration, choosing instead to drive up to the Supreme Court their argument that being exempted from the law in this way unduly burdens their religious rights. Meanwhile, the for-profit businesses like Hobby Lobby that created this legal mess are waiting to see whether or not the Roberts Court will support the accommodation process. Any hint the Court won’t, and we can expect a fresh round of challenges to the latest coverage rule. That makes this summer’s birth control cases before the Supreme Court all the more important.

A win for the Obama administration on its accommodation process should prevent future lawsuits challenging it for for-profit businesses like Hobby Lobby. I say “should” because, as we’ve seen over the last five years, conservatives will launch a lawsuit challenging the ACA about as often as they try and defund Planned Parenthood. But shutting down this pipeline is important, because a principal goal of the litigation is to make the birth control benefit too burdensome and expensive for the Obama administration, or future presidencies, to defend.

Conservatives Expand State-Level Attack Potential

After the Supreme Court in Hobby Lobby agreed that RFRA was designed to apply to both corporations and individuals, conservatives then turned to trying to secure similar legal entitlements for businesses at the state level through the passage or expansion of RFRA bills. Seventeen states in 2015 introduced state-level religious freedom laws, and 21 already have them on their books.

For now, the reach of these state-level laws stretches only as far as the Hobby Lobby decision in terms of rolling back contraception coverage, but as religious conservatives continue to use RFRA as a weapon against advances in gender and sexual equality, the entire birth control benefit remains at risk.

So far, the Supreme Court has avoided taking on directly the question of just when, if ever, individual religious liberty interests trump equal protection guarantees. But consider the lower court decisions like this one out of Alabama, which goes out of its way to ignore both the rights of LGBTQ parents as well as the Obergefell v. Hodges decision striking down same-sex marriage bans this summer. Add those to the expanding RFRA laws, and it’s not a question of if the Roberts Court will step in in to settle the fight between those claiming a religious right to discrimination and those who insist the law protects everyone equally, but when.

Even if that question ends up before the Court in a case related to marriage equality or LGBTQ rights directly, a decision supporting conservatives’ arguments would reverberate to contraception coverage, thus making it even easier for bosses to raise religious objections and discriminate against employees for their reproductive health-care decisions.