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Issue Focus: Contraceptive Access

Under the Affordable Care Act (ACA), the US Department of Health and Human Services (HHS) expanded access to preventive health care, including birth control, without any out-of-pocket costs in most insurance plans. As a result, an estimated 62 million people have accessed no-cost birth control, following their own moral beliefs when making decisions about whether and when to use contraceptives.

Notably, HHS exempted some religious employers, essentially houses of worship, from this requirement. For faith-affiliated institutions, i.e. universities or hospitals, which object to offering this coverage, HHS devised an accommodation policy requiring insurance plans to work directly with employees and students to provide contraceptive coverage at no added cost. Nearly a decade of legal back-and-forth surrounding this policy has blocked access to critical care and jeopardized patient health, safety, and religious liberty.

At NCJW, we know that birth control is a moral good essential to equity and economic security and that a majority of people of faith support birth control coverage. Read our Birth Control & Religious Liberty resource to learn more. NCJW advocates have been involved in the fight for contraceptive access and coverage from the very beginning; we pushed for provisions benefitting women, children, and families — including the contraceptive coverage mandate — to be included in the ACA and urged our lawmakers to pass this important legislation, a key source of coverage for America’s historically underserved communities. Below are just a few examples of the work we have done to defend the ACA and to ensure that everyone has access to birth control, no matter where they work or go to school.

TIMELINE

March 2010: The Affordable Care Act (ACA) is signed into law. Federal regulations implementing the landmark health care legislation required that insurance plans cover all Food and Drug Administration-approved methods of contraception at no cost to the patient.

  • However, certain non-profit religious employers were exempted from this requirement. Those objecting to providing coverage for contraception were instructed to submit a form certifying their objection and coverage was then made available to employees through third-party administrators.
  • Following continued opposition to even the simple act of submitting this form, the process for objecting was further simplified, requiring only that employers inform HHS of their objection in writing.
  • Extensive litigation results when HHS and objecting parties fail to reach a compromise.

September 2012: Two private, for-profit businesses — the Hobby Lobby arts and crafts chain and Conestoga Wood Specialties Corporation — file suit against HHS, at the time led by Secretary Sylvia Burwell. These secular institutions cite the Religious Freedom Restoration Act (RFRA) and the First Amendment’s Free Exercise Clause in seeking to assert a religious objection to deny employees access to contraceptive coverage, forcing them to abide by their boss’ religious beliefs.

June 2014: The Supreme Court (SCOTUS) announces its decision in Burwell v. Hobby Lobby. The Court unjustly decided that “closely held” corporations could have religious beliefs that should exempt them from covering birth control. Hobby Lobby opened the door for private companies to deny their employees’ contraceptive access, eroding religious and reproductive freedoms, and risking their health and economic security. The ruling’s impact falls hardest on people of color, young people, and low-wage workers, among others who already face barriers to health care.

November 2015: SCOTUS consolidates seven cases challenging the contraceptive mandate and arguing that the exemption should include religious organizations that are not churches. Oral arguments in Zubik v. Burwell are heard in March 2016.

May 2016: The Court announces its non-decision in Zubik v. Burwell, ordering lower courts to reexamine the challenges and instructing the parties to attempt a compromise.

October 2017: The Trump administration issues two Interim Final Rules (IFR) — one based on religious objections and the other on moral objections — that dramatically expand which employers can be exempted from the contraceptive mandate.

  • Both IFRs were blocked by nationwide injunctions in the Third and Ninth Circuit Courts. The courts determined that the IFRs
    • violated the Administrative Procedure Act (APA) by not adhering to the necessary standards of the rulemaking process;
    • were inconsistent with the intent of Congress in passing the ACA; and
    • were not authorized by RFRA.

November 2018: The Trump administration issues final rules nearly identical to those that had been blocked by the courts.

October 2019: The Trump administration petitions for SCOTUS review of the decisions blocking implementation of the final rules.

January 2020: SCOTUS accepts the administration’s petition. Oral arguments in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania are scheduled for May 6, 2020, by telephone. The Court will consider whether the administration violated APA rulemaking requirements and whether the rules are authorized under the ACA and RFRA.

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