National Partnership for Women & Families

In the News

Both Sides Hold Steady in Latest Contraceptive Coverage Arguments

Both Sides Hold Steady in Latest Contraceptive Coverage Arguments

January 13, 2014 — On Friday, both sides filed arguments with the Supreme Court in a case over whether the federal contraceptive coverage rules present an unacceptably burdensome requirement for for-profit businesses whose owners have religious objections, Politico reports (Haberkorn, Politico, 1/11).

The rules, which are being implemented under the Affordable Care Act (PL 111-148), require most for-profit, private businesses to offer contraceptive coverage in their employer-sponsored health plans. In the case before the high court, the arts-and-crafts retail chain Hobby Lobby and cabinet maker Conestoga Wood Specialties argue that the requirement goes against their owners' personal religious beliefs and violates the 1993 Religious Freedom Restoration Act (PL 103-141), which "protects a person's exercise of religion."

The high court also will consider whether the First Amendment's free exercise clause may apply to for-profit businesses.

The Supreme Court announced last week that it would hear oral arguments in the case on March 25 (Women's Health Policy Report, 1/9).

Latest Filings

According to Politico, DOJ will have to prove that the government has a compelling interest in enforcing the requirement and is doing so in the least restrictive way possible.

In the documents filed Friday, the Department of Justice argued that an employer's religious beliefs are not a legitimate reason to deny employees access to contraceptive care to which they are entitled under the ACA. "The connection is too indirect as a matter of law to impose a substantial burden" on employers' right to practice religion, the government said.

Meanwhile, the owners of Conestoga argued that they and their company are entitled to religious protections and that the government cannot prove that it has a compelling need to burden those religious beliefs, particularly given how many people will not receive the coverage because their health plans are exempted under the law's accommodation for grandfathered plans.

"It is simply impossible for the government to have a 'paramount' need to impose the mandate on a few religiously motivated employers ... when it voluntarily exempts tens of millions of women from the mandate's scope via exemptions for thousands of nonreligious and religious employers," the plaintiffs wrote (Politico, 1/11).

Opinion Piece, Editorial Debate Contraceptive Coverage Accommodation for Little Sisters

In related news, a USA Today editorial and an opinion piece by Planned Parenthood Federation of America President Cecile Richards debated the merits of the government's contraceptive coverage accommodation for religiously affiliated not-for-profit employers, specifically in the case brought by the Little Sisters of the Poor. Summaries appear below.

~ Cecile Richards, USA Today: "The Obama administration has struck the right balance between religious liberty and the right to affordable health care with the [ACA's] birth control benefit," Richards writes. She explains that the Little Sisters and other religiously affiliated not-for-profits simply have to "fill out a one-page form stating that [they] objec[t] to providing contraception, and send the form to [the] insurer." The "administration is bending over backward to ensure that religious organizations are able to exercise their constitutional right of freedom of religion" while ensuring "that all women, regardless of their employer's religious beliefs, get equal access to health care," Richards writes, adding, "The real issues on the table are health care, financial security and basic fairness for women" (Richards, USA Today, 1/12).

~ USA Today: The accommodation for not-for-profits "is more of a fig leaf than a fix," a USA Today editorial states, noting that "judges have granted preliminary relief to the non-profits" contesting the accommodation in 19 of 20 cases so far. "The administration should take the hint," the editorial continues, adding that "even if the government wins [in the Little Sisters case], the whole exercise will not result in a single woman getting a single free contraceptive, because under a different law, the insurers themselves are exempt." The editorial urges the administration to adopt "the most expansive ... constitutionally vetted religious exemptio[n]" and exempt "employers who share 'religious bonds and convictions with a church'" (USA Today, 1/12).