Recently, the public had an opportunity to chime in on a debate that left the U.S. Supreme Court stumped: To what extent do religious liberty rights trump women’s rights to contraceptive coverage?
A group of federal agencies sent out a request for information (RFI) on this topic in July; the comment period ended on September 20. The RFI asks the public to comment on whether an accommodation granted to religious employers that object to providing contraceptive coverage under the Affordable Care Act should be changed to further meet the concerns of religious employers. The RFI will be followed by a proposed rule, which the public will be allowed to comment on as well.
While it remains to be seen how the public’s comments will sway the government’s actions, it’s important to understand that the two accommodations proposed by the federal agencies in the RFI risk a constitutional violation and could harm vulnerable populations. The organization for which I work, Columbia Law School’s Public Rights and Public Conscience Project, submitted comments electronically to the U.S. Department of Health and Human Services (HHS) speaking to that fact. The proposed accommodations would make it much harder for a large number of women to easily access contraceptives. This places both a financial and emotional burden on women, affecting their ability to make crucial family planning decisions.
The RFI came out two months after the Supreme Court punted a case on this very topic back to the lower courts. That case, Zubik v. Burwell, combined separate challenges from religiously affiliated nonprofits to the Affordable Care Act’s contraceptive benefit, which requires employers to provide their employees with health insurance coverage for birth control without a co-pay.
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The accommodation to the birth control benefit, which was put into place in 2010 when the Affordable Care Act took effect, allows religiously affiliated nonprofits to opt out by filing a one-page form with the HHS, and makes health insurance companies or third-party administrators responsible for stepping in to provide this coverage without involvement or funds from the employer. But the nonprofits have asserted that even this requirement violates their religious beliefs. The government, however, holds that the accommodation complies with relevant laws protecting religious freedom, such as the Religious Freedom and Restoration Act (RFRA), which was enacted in 1993 to protect religious minorities.
The federal agencies that issued the RFI—HHS, labor, and treasury—asked the public to comment on two alternatives to the current ACA religious accommodation. The first alternative would allow religious nonprofits to contract with insurers for coverage that does not include contraceptives; the insurer would have to notify employees separately and explain that it would provide contraceptive coverage independent of the employer’s health plan. Here, the religious employer would only have to verbally notify the insurer of its objection, rather than through a form. The second alternative requires employees to affirmatively enroll in policies that only cover contraceptives.
It’s important to note that the current accommodation offered to religious groups sufficiently protects their religious freedom under the First Amendment. In addition, my colleagues and I are concerned about the large number of women, especially women of color, who would be harmed if either of the two alternatives presented in the RFI becomes law.
Because of the fact that the existing religious accommodation to the contraceptive coverage provision meets the requirements of the RFRA, there really is no need for an alternative accommodation. RFRA prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. The current accommodation meets this standard because it does not impose a burden on religious exercise and is the least restrictive means of furthering the government’s interests in ensuring access to contraception, a necessary part of basic preventive health care.
As all but one of the appellate courts that have heard these challenges have held, the current accommodation does not impose a substantial burden on the objecting organizations’ exercise of religion. In the Supreme Court’s Zubik decision, the Court decided not to rule on whether the religious organizations were substantially burdened, effectively dodging this important question.
Even if the nonprofits could show that their ability to practice their religion was burdened by the current accommodation, they would still fail the second part of the RFRA test. This is because the accommodation furthers two compelling government interests: ensuring access to contraceptives without a co-pay and avoiding possible violations of the religious clauses of the First Amendment, and doing so in a way that is not overly restrictive or drastic.
But both of the accommodations in the RFI would impair employees’ ability to receive seamless access to contraceptive coverage. The first, which allows employers to request that they be exempted from providing contraceptive coverage verbally, rather than through a written form, leaves ample opportunity for miscommunications and disputes between employers, health plans, and the government. This could leave employees without adequate health coverage and impede enforcement of the birth control benefit.
The second alternative, which is the contraceptive-only policy, would raise a host of administrative and financial problems. In addition, by requiring employees to affirmatively enroll in the contraceptive-only plans, this accommodation would eliminate the seamless access to contraceptive coverage that the birth control benefit provision was intended to guarantee.
The proposed alternatives also would impose harms on employees and their families and risk violating the Establishment Clause of the First Amendment, which prevents the establishment of religion by the government. A clear line of Supreme Court cases have held that the Establishment Clause was violated when a government-created religious accommodation imposed serious harms on other private individuals. Both of the alternative accommodations put forth in the RFI would impose a significant harm on non-beneficiaries, most notably employees and their families.
As I noted, by providing ample opportunity for confusion, misrepresentation, and further RFRA litigation, the first alternative would make employees susceptible to extensive gaps in necessary contraceptive coverage. Further, by making enforcement of the contraceptive benefit significantly more difficult, it would impose costs on both employees and the government. And the second alternative would impose significant burdens on third parties by requiring health plans to create, and employees to seek out and enroll in, contraceptive-only health plans. These plans would likely face substantial administrative and financial difficulties. Furthermore, they would result in fewer employees and families having adequate access to contraceptive health care.
Lastly, access to contraceptive care without a co-pay is extremely important for all women, but especially women of color. Many women of color, who on average earn significantly less than white women, cannot afford to pay for quality contraception. For example, the intrauterine device (IUD) is considered the most effective form of contraception available on the market today and costs roughly between $500 and $1,000 without insurance coverage. Only about 6 percent of Black women have used IUDs compared with 78 percent who have used birth control pills, which have higher user failure rates than other methods. Providing women of color with access to contraceptive coverage at no additional cost could help reduce the reproductive health disparities that we see in communities of color.
The government’s commitment to religious freedom, as mentioned in the RFI, should be applauded; however, this commitment should not outweigh its duty to uphold the rights of women seeking access to a basic health-care service. Unfortunately, the Supreme Court dodged making a decision on this important issue. HHS, hopefully, will find a solution that does not harm third parties, especially those who belong to vulnerable populations.