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Status of the Lawsuits Challenging the Affordable Care Act’s Birth Control Coverage Benefit

Full Document with Chart

Over 100 lawsuits have been filed in federal court challenging the Affordable Care Act’s birth control coverage benefit. The benefit requires new health plans to include coverage for the full range of FDA-approved methods of birth control, sterilization, and related education and counseling at no cost-sharing. 

For-profit companies are among those that are pushing for the courts to allow bosses to decide whether women will have access to insurance coverage of birth control.  These cases have been filed by for-profit companies ranging from a mining company to the Hobby Lobby crafts store chain to an HVAC company.  Non-profit organizations with religious objections to birth control have also brought challenges to the benefit. The challenges have been brought under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment.

Supreme Court Review:

This term, the Supreme Court is reviewing 2 of the for-profit cases, Hobby Lobby and Conestoga Wood Specialties. Oral arguments was heard March 25, 2014.  The Court is expected to issue a decision this term.   

•    In Hobby Lobby (a nationwide arts and crafts store chain with over 13,000 employees), the 10th Circuit Court of Appeals held in favor of the for-profit company, finding that it can exercise religious beliefs under RFRA and that the birth control requirement violated the company’s rights under RFRA. 
•    In Conestoga Wood Specialties (a manufacturer of wood cabinet and specialty products with 950 employees), the 3rd Circuit Court of Appeals rejected both the for-profit corporation’s and its owners’ RFRA and First Amendment challenges to the birth control coverage requirement. 
•    It is expected that the Supreme Court will consider the threshold question of whether a for-profit corporation is capable of religious exercise, along with other RFRA and First Amendment issues, including:
o    Under RFRA: whether the birth control benefit substantially burdens religious exercise; if so, whether compelling government interests justify the burden and whether the benefit is the least restrictive means of furthering those interests.
o    Under the First Amendment: whether the birth control coverage requirement is neutral and generally applicable; if not, whether compelling government interests justify the benefit.
•    The National Women’s Law Center, joined by 68 other organizations, filed an amicus brief at the Supreme Court, focusing on the compelling government interests forwarded by the birth control coverage requirement.

Status of Cases in the Lower Federal Courts – For-Profits:

50 cases have been filed by for-profit companies, 48 of which are pending.

•    To date, 7 panels of circuit courts of appeals have heard arguments in cases brought by for-profit companies, 6 of which have issued decisions. 
•    Three circuit court panels, the 3rd Circuit in Conestoga and the 6th Circuit in Autocam and Eden Foods, rejected the RFRA claims of the for-profit companies and their owners. The courts held that a for-profit corporation is not a “person” capable of religious exercise under RFRA and that the owners’ personal religious exercise is not affected by the birth control coverage requirement. The Conestoga court also rejected the First Amendment claims of the for-profit company and its owners.    
•    Three circuit court panels, the D.C. Circuit (Gilardi), 7th Circuit (in the consolidated Korte and Grote cases), and 10th Circuit (Hobby Lobby) have allowed the companies to refuse to cover birth control in their employees’ health insurance plans.
•    An 8th Circuit panel has heard oral argument in 2 cases, Annex Medical and O’Brien, but has not yet issued a decision in either case.
•    Four cases include both for- and non-profit plaintiffs: Geneva College (3rd Circuit), Weingartz/Legatus (6th Circuit) and Sharpe Holdings (8th Circuit); and Catholic Benefits Association (W.D. Okla.).

Status of Cases in the Lower Federal Courts – Non-Profits: 

57 cases have been brought by non-profit organizations, 34 of which are pending. 

•    Several of the non-profit cases were initially voluntarily withdrawn or dismissed as not being ripe or because plaintiffs lacked standing. This is because non-profits with religious objections to providing birth control coverage were given a delay in implementing the benefit and the Administration was undertaking rulemaking on an “accommodation” for non-profit organizations with religious objections to providing the benefit.  
•    The Administration finalized the accommodation rule on June 28.  The rule allows a non-profit that holds itself out as religious and has religious objections to birth control to refuse to cover it, while ensuring that the non-profit’s employees receive the coverage without cost-sharing directly from the insurance company.  So far, 34 non-profit cases have been filed by non-profits that are not satisfied with the accommodation.  This includes 13 cases re-filed by non-profits that withdrew their initial challenges or whose challenges were dismissed. 

Status of Cases in the Lower Federal Courts – Other:

2 cases have been brought by plaintiffs that are neither for-profit companies nor non-profit organizations. 

•    Wieland was brought by State Representative Paul Wieland, a member of the Missouri House of Representatives. This was the first challenge by an employee who receives insurance through an employer that is complying with the rule. A Missouri district court dismissed the case on the grounds that Representative Wieland did not have standing to bring the case. The plaintiffs have appealed to the 8th Circuit. 
•    State of Nebraska was brought by officials representing the states of Nebraska, South Carolina, Michigan, Texas, Florida, Ohio, and Oklahoma. Following the government’s rulemaking on the accommodation, the 8th Circuit dismissed their case at the officials’ request.

The attached chart details the cases brought by both for-profit companies, non-profit organizations, as well as other cases brought by plaintiffs that are neither not for-profit companies nor non-profit organizations. The first chart contains the for-profit cases; the second contains the non-profit cases; the third includes other cases. Each chart is organized by the region of the country in which the case was filed, according to the boundaries of the courts of appeals. The cases that will be heard by the Supreme Court are highlighted in yellow. Closed cases are highlighted in grey. 

For more information about the health care law’s birth control coverage benefit and the legal claims at issue in the cases, please visit:
http://www.nwlc.org/preventive-services-including-contraceptive-coverage-under-health-care-law.