Brigitte Amiri is a senior staff attorney with the ACLU Reproductive Freedom Project. The views expressed here are her own.
I recently caught a rerun of Saturday Night Live. It was the one where Weekend Update with Amy Poehler and Seth Meyers covered the congressional hearing on the Affordable Care Act’s contraception-coverage requirement, where no women were allowed to testify. It is funny and vindicating. But at the same time, it’s depressing to watch because it’s actually closer to the truth than to a joke, and a sad reminder of how little has changed since that episode aired four years ago. This never-ending battle over women’s access to birth control was punctuated by Monday’s Supreme Court decision in the Zubik v. Burwell case. So, what does the Supreme Court's latest ruling on birth control mean to you? Ahead, everything you need to know.
1. How’d We Get Here? — Burwell v. Hobby Lobby
The main issue in this fight stems from the federal requirement that insurance companies cover birth control without a co-pay. In June 2014, the Supreme Court held that this requirement violated the religious rights of arts-and-crafts giant Hobby Lobby and other “closely held” for-profit businesses. In reaching its decision, the Supreme Court pointed to the “opt-out,” then available for religiously affiliated nonprofit organizations as an alternative that would likely alleviate legal concerns. That “opt-out” itself is what was challenged in the case decided yesterday.
I recently caught a rerun of Saturday Night Live. It was the one where Weekend Update with Amy Poehler and Seth Meyers covered the congressional hearing on the Affordable Care Act’s contraception-coverage requirement, where no women were allowed to testify. It is funny and vindicating. But at the same time, it’s depressing to watch because it’s actually closer to the truth than to a joke, and a sad reminder of how little has changed since that episode aired four years ago. This never-ending battle over women’s access to birth control was punctuated by Monday’s Supreme Court decision in the Zubik v. Burwell case. So, what does the Supreme Court's latest ruling on birth control mean to you? Ahead, everything you need to know.
1. How’d We Get Here? — Burwell v. Hobby Lobby
The main issue in this fight stems from the federal requirement that insurance companies cover birth control without a co-pay. In June 2014, the Supreme Court held that this requirement violated the religious rights of arts-and-crafts giant Hobby Lobby and other “closely held” for-profit businesses. In reaching its decision, the Supreme Court pointed to the “opt-out,” then available for religiously affiliated nonprofit organizations as an alternative that would likely alleviate legal concerns. That “opt-out” itself is what was challenged in the case decided yesterday.
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The main issue in this fight stems from the federal requirement that insurance companies cover birth control without a co-pay.
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2. Opting Out of the Opt-Out Notice — Zubik v. Burwell
At the same time as Hobby Lobby was being considered by the Supreme Court, many religiously affiliated nonprofit organizations were also challenging the mechanism for opting out of the contraception requirement. To take advantage of this opt-out, religiously affiliated employers who object to providing contraception coverage to their employees simply need to fill out a one-page opt-out form, and then the insurance companies provide the coverage directly to the employees, at no cost to the employer. Some religiously affiliated nonprofit employers — including universities and hospitals — sued, claiming that filling out the opt-out form violated their beliefs. Instead, they wanted to be completely exempt, and they wanted their employees to be prohibited from having contraception coverage from their insurance company.
At the same time as Hobby Lobby was being considered by the Supreme Court, many religiously affiliated nonprofit organizations were also challenging the mechanism for opting out of the contraception requirement. To take advantage of this opt-out, religiously affiliated employers who object to providing contraception coverage to their employees simply need to fill out a one-page opt-out form, and then the insurance companies provide the coverage directly to the employees, at no cost to the employer. Some religiously affiliated nonprofit employers — including universities and hospitals — sued, claiming that filling out the opt-out form violated their beliefs. Instead, they wanted to be completely exempt, and they wanted their employees to be prohibited from having contraception coverage from their insurance company.
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This means more litigation, more wasted paper, and worst of all, it means that employers will continue to try to use their religious beliefs to discriminate against women...
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3. This Week’s Decision — The Ultimate Punt
Earlier this week, the Supreme Court decided a number of the challenges brought by nonprofit employers — seven cases consolidated into one. The decision, or non-decision as the case may be, was unanimous. The Supreme Court sent the cases back down to the lower courts to see if the parties could reach a compromise. This is a frustrating result. The decision should have been a resounding victory for women. The Supreme Court should have reiterated what they said two years ago, when even the justices who ruled in Hobby Lobby’s favor pointed to the opt-out as a solution. This should have been an open and shut case.
4. What the Decision Means for Women — No Resolution for Tens of Thousands
Here’s the weird thing about Monday’s decision: At the same time the Supreme Court punted, it also said that the government can rely on the information in the lawsuits in lieu of the opt-out form to ensure that women who work for the employers get the coverage directly from the health insurance companies. We hope that the government will take the Supreme Court up on its offer and do just that. Also, it’s important to remember that most women are not at risk of losing coverage. Millions of women have already benefited from the Affordable Care Act contraception rule, and will continue to do so — most women do not work for a religiously affiliated employer that objects to the opt-out. But, for those employees who work at a few dozen places that do, the fight will unfortunately continue as the litigation goes on.
Earlier this week, the Supreme Court decided a number of the challenges brought by nonprofit employers — seven cases consolidated into one. The decision, or non-decision as the case may be, was unanimous. The Supreme Court sent the cases back down to the lower courts to see if the parties could reach a compromise. This is a frustrating result. The decision should have been a resounding victory for women. The Supreme Court should have reiterated what they said two years ago, when even the justices who ruled in Hobby Lobby’s favor pointed to the opt-out as a solution. This should have been an open and shut case.
4. What the Decision Means for Women — No Resolution for Tens of Thousands
Here’s the weird thing about Monday’s decision: At the same time the Supreme Court punted, it also said that the government can rely on the information in the lawsuits in lieu of the opt-out form to ensure that women who work for the employers get the coverage directly from the health insurance companies. We hope that the government will take the Supreme Court up on its offer and do just that. Also, it’s important to remember that most women are not at risk of losing coverage. Millions of women have already benefited from the Affordable Care Act contraception rule, and will continue to do so — most women do not work for a religiously affiliated employer that objects to the opt-out. But, for those employees who work at a few dozen places that do, the fight will unfortunately continue as the litigation goes on.
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The decision should have been a resounding victory for women…This should have been an open and shut case.
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5. Next Steps — Bang. Head. Against. Wall.
The cases will now get sent down to the lower courts. That’s true not just for those in Zubik, but also others that were percolating. There were nine federal appeals court decisions on the issue — eight of which have found in favor of the government and women. Some of those cases, including the one outlier where we lost, have already been sent back down, and the others will likely follow. This means more litigation, more wasted paper, and worst of all, it means that employers will continue to try to use their religious beliefs to discriminate against women by denying them contraception coverage. My only other hope, aside from women actually getting the health care they need without interference, is that Seth and Amy have a reunion sketch. We could all use a good laugh as we continue fighting this fight.
The cases will now get sent down to the lower courts. That’s true not just for those in Zubik, but also others that were percolating. There were nine federal appeals court decisions on the issue — eight of which have found in favor of the government and women. Some of those cases, including the one outlier where we lost, have already been sent back down, and the others will likely follow. This means more litigation, more wasted paper, and worst of all, it means that employers will continue to try to use their religious beliefs to discriminate against women by denying them contraception coverage. My only other hope, aside from women actually getting the health care they need without interference, is that Seth and Amy have a reunion sketch. We could all use a good laugh as we continue fighting this fight.