The Supreme Court heard oral arguments yesterday—the 6th anniversary of the Affordable Care Act (ACA)—on whether religiously affiliated non-profits can use their religious beliefs to discriminate against women by blocking health insurance coverage for birth control.
The case, Zubik v. Burwell, is a consolidation of seven cases brought by religiously-affiliated non-profit organizations who claim that the requirement to fill out a one-page form to receive an exemption from paying for their employees’ birth control coverage places a substantial burden on their exercise of religion, and therefore violates the Religious Freedom Restoration Act (RFRA).
“Why are we still having to fight for access to basic reproductive healthcare? If this had to do with men’s lives, it wouldn’t be before the U.S. Supreme Court. Thanks to the ACA, 55 million women now have access to birth control and other preventive services without co-pays or deductibles,” said Feminist Majority Foundation President Eleanor Smeal. “This case threatens to roll back much of the progress gained for women employees and students at religious institutions in the last six years. Bosses have no business making healthcare decisions for their employees—let alone their employee’s spouses or students—nearly 25% of whom use birth control to treat conditions like endometriosis and ovarian cysts.”
Under the ACA, health insurance companies must cover the full cost of all FDA-approved contraceptives without requiring co-pays or cost-sharing. Religious employers, like churches, are entirely exempt from this requirement. Religiously affiliated non-profits – such as some colleges and hospitals – that object to birth control on religious grounds can receive an accommodation that relieves them of their obligation to pay for their employees’ birth control coverage. In these cases, the non-profits would simply inform their health insurance company or the Department of Health and Human Services – via a one-page form or letter – that it objects to providing birth control coverage. At that point, these organizations are no longer required to play any role in providing or subsidizing birth control. Instead, the insurance company or a third party administrator would pay for the birth control coverage directly.
Supporters of women’s health had a presence outside of the Supreme Court yesterday, holding signs reminding the public that “Birth Control is Critical to Women’s Health, Equality, and Economic Security,” that “Your Boss Does Not Belong In Your Bedroom,” and “I Shouldn’t Pay for My Boss’s Religion.” Thousands more participated in a digital rally in support of the ACA, using the hashtag #HandsOffMyBC.
Eight federal appeals courts have ruled that it is not a violation of RFRA for a religiously affiliated non-profit to fill out a form indicating that it objects to providing insurance coverage for birth control. Only one court—the Eighth Circuit Court of Appeals—has sided with the non-profits.
This case follows a 2014 U.S. Supreme Court decision in Hobby Lobby v. Burwell that said that for-profit corporations with religious objections could deny health insurance coverage for birth control. In its opinion, the Court determined that the government could achieve its goal of making birth control coverage available through narrower means, specifically referencing the accommodation available to religiously affiliated non-profits.
A decision in Zubik is expected in the summer.