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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. 

Both for-profit companies and non-profit organizations have challenged the birth control coverage requirement. 

Status of For-Profit Cases:

For-profit companies ranging from a mining company to the Hobby Lobby crafts store chain to an HVAC company have objected to including coverage of birth control in their health insurance plans. 

  • 50 cases have been filed by for-profit companies (including 4 cases that include both for- and non-profit plaintiffs).  Two cases were dismissed, one of which was then re-filed in another court.  Following the Supreme Court’s decision in Hobby Lobby, the government has been permanently enjoined enforcement of the contraceptive coverage provision in place on the day the Hobby Lobby decision was issued against plaintiffs in 40 cases.
  • On June 30, 2014, the Supreme Court in a 5-4 decision held that the Religious Freedom Restoration Act (RFRA) allows some for-profit corporations to get out of complying with the birth control coverage requirement if they have religious beliefs against providing it. The Court held:
    • Closely-held corporations owned by families like Hobby Lobby and Conestoga Wood Specialties can bring claims under RFRA; 
    • The contraceptive coverage benefit imposes a substantial burden on the religious exercise of Hobby Lobby and Conestoga Wood; and
    • Requiring birth control coverage through the employer’s health insurance plan is not the least restrictive means of furthering the government’s compelling interests—which the majority assumed the government had—and the government could otherwise ensure women receive coverage and will not be harmed.  
  • After issuing its decision in Hobby Lobby, the Supreme Court vacated the rulings in three cases where plaintiffs had asked for Supreme Court review, sending the cases back to the lower courts for further consideration in light of Hobby LobbyEden Foods and Autocam returned to the 6th Circuit. Gilardi returned to the D.C. Circuit.
  • On August 22, 2014, in response to the Supreme Court’s decision, the Administration issued a proposed rule that would expand the “accommodation”–currently in place for non-profit organizations with religious objections to contraceptive coverage— to certain closely-held for-profit companies.  The proposed rule aims to ensure that women receive contraceptive coverage with no cost-sharing as guaranteed by the ACA while being consistent with the Supreme Court’s decision in Hobby Lobby.  

Status of Non-Profit Cases:

Non-profit organizations are objecting to the “accommodation” under the birth control coverage requirement. The accommodation allows an eligible non-profit to refuse coverage in its health insurance plan but ensures women receive the coverage directly from the insurance company.

  • 43 non-profit cases are pending (including 4 cases that include both for- and non-profit plaintiffs), of a total of 68 cases that have been filed by non-profit organizations.  Several cases were initially dismissed on procedural grounds; some of these cases were re-filed after the accommodation rule was finalized.  The accommodation rule allows a non-profit that holds itself out as religious and has religious objections to birth control to refuse to provide health insurance coverage of it, while ensuring that the non-profit’s employees receive the coverage without cost-sharing directly from the insurance company. 
  • Five circuit courts of appeals have rejected the RFRA claims of the non-profits: the DC Circuit in Priests for Life/Archbishop of Washington (Nov. 14, 2014); the 3d Circuit in Geneva College/Persico/Zubik (Feb. 11, 2015); the 5th Circuit in East Texas Baptist Univ./Univ. of Dallas/Diocese of Beaumont/Diocese of Fort Worth; the 6th Circuit in Michigan Catholic Conference/Diocese of Nashville (June 11, 2014) (the 6th Circuit decision has since been vacated by the Supreme Court, the case will now be reconsidered in light of the Hobby Lobby decision), and the 7th Circuit in University of Notre Dame (May 19, 2015) (The Supreme Court vacated an earlier decision by the 7th Circuit which rejected Notre Dame’s RFRA challenge to the accommodation (issued in February 2014).  The 7th Circuit reconsidered the Notre Dame case and subsequently issued a decision on May 20, 2015 once again denying Notre Dame a preliminary injunction).
  • On January 24, 2014, the Supreme Court issued an emergency injunction pending appeal in Little Sisters on the condition that the petitioners in that case file notice with HHS that they are organizations that hold themselves out as religious and have religious objections to contraceptive coverage. On July 3, a majority of the Court issued a similar order in Wheaton College. Justice Sotomayor wrote a lengthy dissent, joined by Justices Ginsburg and Kagan.  In both cases, the order emphasized that it should not be construed as the Court’s views on the merits of the non-profits’ claims.  
  • On August 22, 2014, in response to the Supreme Court’s order in Wheaton College, the Administration issued an interim final rule modifying the accommodation for non-profit organizations with religious objections to contraceptive coverage.  The rule provides an alternative process by which an organization may provide notice of its religious objections to contraceptive coverage, while still preserving women’s access to such coverage with no cost-sharing.  Under the rule, non-profit organizations may notify the Department of Health and Human Services instead of their insurance company or third party administrator (TPA) of the non-profit’s objections to contraceptive coverage. 

Status of Other Cases:

There have been several other challenges filed involving the contraceptive coverage provision.  One case, which is still pending, was brought by an individual who objects to having health insurance that includes coverage for birth control. Another case, which was voluntarily dismissed, was brought by a non-profit seeking confirmation from the court that it is eligible for the accommodation. One other case, brought by eight states, was also voluntarily dismissed. (See chart on page 36.)  

The attached charts detail these cases.  The first chart contains the for-profit cases; the second contains challenges that include both for- and non-profits; the third contains the non-profit cases; and the fourth contains other related 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 have been 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: