Status of the Lawsuits Challenging the Affordable Care Act's Birth Control Coverage Benefit
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.
- 46 for-profit cases are pending (including 4 cases that include both for- and non-profit plaintiffs), of a total of 50 cases that have been filed by for-profits. Two cases were dismissed, one of which was then re-filed in another court. Final judgments have been issued in two 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 Lobby. Eden Foods and Autocam returned to the 6th Circuit. Gilardi returned to the D.C. Circuit.
- We expect courts in the other pending for-profit cases to also reconsider them in light of Hobby Lobby, and to grant relief where the court finds that the businesses are similar to Hobby Lobby and Conestoga Woods.
- On August 22, 2014, in response to the Supreme Court’s decision, the Administration issued a rule proposing to expand the “accommodation” in place for non-profit organizations with religious objections to contraceptive coverage to 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 and to while being be consistent with the Supreme Court’s decision in Hobby Lobby. The Administration is seeking comment on its proposal by October 21, 2014.
Status of Non-Profit Cases:
Non-profit organizations are objecting to the “accommodation” under the birth control coverage requirement, which allows objecting non-profits to refuse coverage in their health insurance plans but ensures women receive the coverage directly from the insurance company.
- 42 non-profit cases are pending (including 4 cases that include both for- and non-profit plaintiffs), of a total of 65 cases that have been filed by non-profit organizations. Several cases were initially dismissed on procedural grounds; some of these cases were then re-filed after the accommodation rule was finalized. The pending cases challenge the accommodation rule finalized by the Departments of Labor, Treasury, and Health and Human Services (HHS) on June 28, 2013. 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.
- The Supreme Court’s Hobby Lobby decision will not have a direct effect on these cases, and these cases will continue to proceed through the courts.
- Two circuit courts of appeals have rejected the RFRA claims of the non-profits, finding that the “accommodation” did not impose a substantial burden on their religious exercise: the 6th Circuit in Michigan Catholic Conference/Diocese of Nashville and 7th Circuit in University of Notre Dame
- The D.C. Circuit heard oral argument in Priests for Life/Archbishop of Washington but has not yet issued a decision.
- Three circuit courts of appeals have issued temporary relief: the 3d Circuit in Catholic Charities of the Archdiocese of Philadelphia granted a temporary injunction pending further order of the court; the 11th Circuit in Eternal World Television Network granted an injunction pending appeal; and the 10th Circuit in Diocese of Cheyenne granted an injunction pending appeal (on the condition that plaintiffs file notice with HHS that they are organizations that hold themselves out as religious and have religious objections to contraceptive coverage).
- 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 that such coverage at 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).
Status of Other Cases:
2 other cases are pending, including a case brought by an individual who objects to having insurance that includes coverage for birth control and a case 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 voluntarily dismissed. (See chart on page 34.)
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. The chart can also be found online at
For more information about the health care law’s birth control coverage benefit and the legal claims at issue in the cases, please visit: