This One-Page Form Could Threaten Access To Birth Control

Brigitte Amiri is a senior staff attorney for the ACLU Reproductive Freedom Project.

The Supreme Court is taking up a new case about contraception coverage. We’ll soon find out whether the highest court in the land believes that filling out a form to opt out of paying for contraception coverage is a substantial burden on an employer's religious beliefs. If they do, many women could be left out in the cold when it comes to contraception coverage. So, what do you need to know?

1.
Let's back up and talk about Hobby Lobby.
Chances are you heard about the Hobby Lobby Supreme Court case decided in 2014. This was the case in which the owners of the craft store giant challenged the Affordable Care Act’s requirement that health insurance must cover contraception without a co-pay. They argued that paying for coverage for certain types of contraception in their employees’ health plans infringed on their religious liberty. Unfortunately, the court ruled in favor of Hobby Lobby, but in doing so, the court relied on the fact that the government had already developed an “accommodation” for certain religiously affiliated employers that ensured employees could get contraception coverage. The court suggested that the government could extend that accommodation to businesses like Hobby Lobby as an alternative.

This accommodation — now in place for religiously affiliated nonprofit organizations and closely held for-profit companies with religious objections to covering contraception — allows an employer to send a form to its insurance company or the federal government stating that the employer has a religious objection to covering contraception. The insurance company then pays for the coverage. (Churches and houses of worship are completely exempt from the contraception requirement.) Employers that don’t want to fill out this form have now taken their case all the way to the Supreme Court.

2.
An employer with a religious objection to contraception only has to fill out a one-page form to opt out of paying for contraception coverage.

The employers that have brought these cases are fighting over doing a bit of paperwork that confirms what they are already broadcasting in their lawsuits, namely that they object to covering contraception. If an employer has a religious objection to covering contraception, it simply needs to fill out a one-page form stating its opposition. Then the employer gets taken out of the equation, and the insurance company provides the coverage directly to the employees at no cost to the employer. The employers claim that filling out this form facilitates contraception coverage, but that’s not how the law works. The law obligates insurance companies to cover contraception for all plans covered under the ACA.

The default is that the employer (usually with contributions from the employee) pays for that coverage. But religiously affiliated employers have the option of opting out of paying for coverage. All they have to do is fill out the form, and then the health insurance company — not the employer — pays for the contraception. As some courts have put it, it’s not the form that “triggers” the insurance company to provide contraception coverage — it’s the ACA that does. And by filling out the form, the employer simply opts out of having to pay for it. What’s really going on? These employers are essentially trying to prevent the government from requiring health plans to cover contraception — or, in other words, they want to block insurance companies from providing contraception coverage to their employees.

3. There is widespread support for the contraception benefit and contraception, regardless of religious beliefs.

Opponents of birth control make it sound like contraception coverage is something really radical! It’s not, and most people use contraception. More than 99% of women ages 15 to 44 who have sex have used contraception, and 89% of Catholic women and 90% of Protestant women use a contraceptive method. But more than half of women between 18 to 34 years of age have struggled to afford birth control. Also, the public supports the contraception requirement by nearly a 2-to-1 margin, and 55 million women have already benefitted from it. Not to mention that many large religiously affiliated organizations support the accommodation, including the Catholic Health Association. Contraception should be included in health care plans because it is basic health care, period.
4. Even if the Little Sisters of the Poor loses, its employees won't get contraception coverage.

There has been much fretting about the Little Sisters of the Poor, one of the employers that has sued. They are an order of nuns that own numerous nursing homes across the country, and some people are up in arms about whether their health plan should have to cover contraception. It should. The Little Sisters of the Poor employs people of all faiths in secular jobs — nurses, dishwashers, social workers — and these employees shouldn’t have a benefit taken away from them because of their employers’ religious beliefs. But the bottom line is that the government cannot require the Little Sisters' health plan to cover contraception coverage even if they lose. Why? The Little Sisters have a so-called “church” plan, which means that they are effectively exempt from the contraception requirement. So it’s hard to understand what all the fuss is about.

5.
Blocking contraception coverage — which is guaranteed by law — is sex discrimination.

What’s it called when bosses try to use their religious beliefs to block their female employees’ contraception coverage? Discrimination, plain and simple. Women already pay more for health care than men. And contraception is crucial for women’s equal participation in society. Being able to decide whether and when to have children has a direct effect on women’s ability to make their own paths in terms of their schooling, their careers, and their families. The federal contraception benefit was put in place precisely for these reasons: to further women’s equality. If the employers prevail in these cases, their employees will be denied a benefit guaranteed by law. Countless women will literally be paying for their employers’ beliefs. Religious liberty is a fundamental value, and one that we fight for here at the ACLU. But religious freedom doesn’t give employers the right to discriminate against their female employees.

Learn more about the Supreme Court case, Zubik et al. v. Burwell here
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