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Hillary Schneller, Fellow

Hillary Schneller is an Equal Justice Works Fellow, sponsored by Greenberg Traurig, LLP, for Health and Reproductive Rights at the National Women's Law Center. She focuses on using the Affordable Care Act's nondiscrimination provision, Section 1557, to address sex discrimination in health care. Hillary is a graduate of Barnard College and Columbia Law School. During law school, she was the Pro Bono and Academic Chair of Law Students for Reproductive Justice and the Business and Administrative Editor of the Columbia Journal of Gender and Law. Hillary also participated in Columbia's Sexuality and Gender Law Clinic and interned at ACLU Women's Rights Project and the immigration clinic at The Door, an organization that provides services and support to youth in New York City. During her summers, she was an intern for the Law Center and Planned Parenthood of Western Pennsylvania.

My Take

Seventh Circuit Joins Appellate Courts to Affirm Marriage Equality

Posted by Hillary Schneller, Fellow | Posted on: September 05, 2014 at 10:54 am

Yesterday, the U.S. Court of Appeals for the Seventh Circuit struck down Indiana and Wisconsin laws that exclude same-sex couples from marriage [PDF]. The three judge panel joined the two other federal appeals courts—in the Fourth and Tenth Circuits—that, since the Supreme Court’s Windsor decision, have found marriage inequality unconstitutional.  

In a forceful decision for the unanimous panel written just nine days after the cases were argued, Judge Richard Posner concluded that the states’ marriage bans violate the Constitution’s equal protection guarantee. Judge Posner wrote that cases present a straightforward question: whether the states “are discriminating against homosexuals by denying them a right that these states grant heterosexuals, namely the right to marry an unmarried adult of their choice.” The court’s analysis, he wrote, “goes to the heart of equal protection doctrine” and “capture the essence of the Supreme Court’s approach in heightened scrutiny cases,” the approach courts use to evaluate whether laws that discriminate based on sex violate equal protection.


Whiplash: Post-Hobby Lobby, What Did the Supreme Court Just Do In the Wheaton College Case?

Posted by Hillary Schneller, Fellow | Posted on: July 10, 2014 at 10:01 am

Just as we were trying to figure out what last Monday's Supreme Court’s decision in Hobby Lobby wrought, the Court added yet another layer of confusion late Thursday afternoon when it issued an order that appears to question one of its main premises in its Monday decision. 

Hours after a five justice majority issued its decision in Hobby Lobby allowing for-profits like Hobby Lobby to get out of including birth control in their health insurance plans, Wheaton College filed an emergency application with the Supreme Court so that it, too, could get out of including birth control coverage in its health plan. 

But Wheaton College is already eligible for an accommodation that allows non-profits that hold themselves out as religious to sign a form and opt out of providing birth control coverage. Still, Wheaton pushed all the way to the Supreme Court to stop even this accommodation. Why? Because, under the accommodation, Wheaton's employees and students will still get birth control coverage (just not through Wheaton's health insurance plans). A majority of the Supreme Court granted Wheaton temporary relief [PDF] on the condition that they notify the Department of Health and Human Services (HHS) — instead of their insurance company and TPA as required in the accommodation — of their religious objection to contraceptive coverage. 

Why does Wheaton lead to more questions than answers? Fortunately, Justice Sotomayor lays that out for us in plain English in her fierce dissent, which the two other female justices joined. 


Rewriting Hobby Lobby: If Women Were People, Birth Control Was Health Care, and Sex Discrimination Was Discrimination

Posted by Hillary Schneller, Fellow | Posted on: July 08, 2014 at 10:50 am

Where are the women in Justice Alito's opinion for the majority in Hobby Lobby? In a decision that has so much at stake for women — and, indeed, seems to set up different  rules for when reproductive rights are at stake — the rights and interests of women were absent. Instead, the rights and interests of for-profit corporations — their religious liberty, their economic interests, and their personhood — were front and center. 

One sentence in particular struck me as eerily familiar and, indeed, infuriating: "The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation." Just over twenty years ago, in the Court's 1992 decision in Planned Parenthood v. Casey, it declared something similar but also oh so different: "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." (Justice Ginsburg actually begins her dissent with this quotation, reinforcing the disconnect between majority and the dissent as to the central concerns in this case.) Justice Alito's perhaps unintentional paraphrase of the Court's prior opinion is stunning. 

That led me to do a little rewriting to show the disturbing flip in the majority's understanding of women's rights and corporate rights.


Sixth Circuit Holds That Non-Profit Organizations Can't Interfere with Employees' Birth Control Coverage

Posted by Hillary Schneller, Fellow | Posted on: June 12, 2014 at 01:23 pm

Yesterday, another federal court of appeals [PDF] sided with female employees for whom the Affordable Care Act ensures birth control coverage. In a unanimous decision [PDF] rom a panel of three judges, the 6th Circuit Court of Appeals denied the request of several non-profit organizations with religious objections to birth control to exempt them from the birth control coverage requirement, even though they are not even required to provide the coverage. The court’s decision means that the female employees and their covered dependents will not lose access to the birth control benefit, despite their bosses’ efforts.

These non-profit organizations are entitled to an “accommodation” for the birth control benefit, which aims to respect religious beliefs while still ensuring that women get the benefit they deserve. Under the “accommodation,” the non-profit organizations simply sign a form telling their insurer that they have religious objections to birth control. Separately, the insurer arranges for the employees to get birth control covered with no cost-sharing.

But these non-profits are challenging the accommodation in court, arguing that it violates their religious beliefs to even sign the form.


Not Letting Religion Trump Facts or the Court in the Contraceptive Coverage Cases

Posted by Hillary Schneller, Fellow | Posted on: May 15, 2014 at 03:55 pm

Last week, the D.C. Circuit heard oral argument in two challenges to the contraceptive coverage benefit brought by non-profit organizations with religious objections to contraceptives. And, on Tuesday, a Wyoming district court ruled that a group of non-profit organizations raising the same challenge can’t take the benefit away from their employees while the case moves forward. The argument at the D.C. Circuit and the decision by the Wyoming district court show how the courts are responding to employers’ attempts to let religion trump facts and legal responsibilities of the court.

In each of these cases, the non-profits state objections to contraceptives, sterilization, “abortion-inducing drugs” or “abortifacients,” and any related education and counseling. Wait—what? Despite assertions to the contrary, the ACA does not require any health plan to include coverage for abortion. The birth control benefit requires coverage of all FDA-approved contraceptives. By definition, contraceptives prevent pregnancy. That means that none of the FDA-approved contraceptives health plans must cover are abortifacients. In fact, physicians and other health care professionals submitted a brief to the Supreme Court that explains these facts [PDF]. But don’t let facts get in the way of a good story. The media, and even courts, are picking up this inaccurate conflation between contraceptives and abortion—adding to misinformation and deception that is already common when it comes to women’s reproductive health.