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Birth Control

Hobby Lobby: A "Perfect Storm" to Galvanize the Public

Although I was expecting a strong public outcry after the Supreme Court’s decision in the Hobby Lobby case, the depth and breadth of the outrage has surprised me. People who have never expressed an interest in women’s issues are posting about it on Facebook and asking me questions about the case. Friends who have a passing interest in reproductive rights have reached out to me to find out what they can do and where they can donate.

I think the reason for this wide-spread outrage is that in the Hobby Lobby decision, several different long-term attacks on individual liberties all come together. Just as three different weather fronts collided to make the 1991 “Perfect Storm” that is the subject of the book and film of the same name, three different “fronts” collide in the Court’s decision as well: Read more »

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

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. Read more »

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

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. Read more »

5 Things to Know About the Cases Brought by Non-Profits with Religious Objections to Insurance Coverage for Birth Control

You’ve heard about the for-profit companies challenging the birth control coverage benefit. In March, the Supreme Court heard oral argument in two for-profit cases, brought by Hobby Lobby, a nationwide arts and crafts store with over 13,000 employees, and Conestoga Wood Specialties, a wood cabinet manufacturer with nearly 1,000 employees. A decision in those cases is expected in June.

Meanwhile, non-profits with religious objections to birth control coverage have also challenged the benefit, with over 30 cases currently pending. Those cases are making their way through the courts and, on Thursday, the D.C. Circuit and Sixth Circuit Courts of Appeal will hear oral argument in two sets of non-profit cases.  

Here are 5 things to know about the challenges to the birth control coverage benefit brought by non-profits with religious objections:  Read more »

D.C. Standing Up For Women's Reproductive Health Decisions

My colleague Michelle wrote recently about proactive legislation that state legislators are introducing in order to expand and protect women’s access to reproductive health care services. Here’s one more example: Yesterday, D.C. Council Member Grosso introduced the “Reproductive Health Non-Discrimination Amendment Act of 2014.” Like bills introduced in Michigan and New York, this bill will protect employees from discrimination by an employer because of a reproductive health decision, like using birth control or in vitro fertilization.

As Councilmember Grosso explained, “Nationally, there have been a number of disturbing cases of bosses retaliating against employees for their reproductive health care decisions. For example, in Wisconsin, after the state legislature passed a law requiring insurance plans to cover contraception, the Catholic diocese told employees that if they used the benefit, they would be fired. In the past 4 years alone, individuals in California, Texas, Montana, and Indiana have brought discrimination suits against their employers after being fired from their jobs for being pregnant without being married.” Read more »

What We Mean When We Talk About "Compromising" Antidiscrimination Laws With Religious Exemptions

While attending a conference on creating religious exemptions to civil rights laws, I noticed a theme throughout: a standard plea for “compromise” to accommodate those with religious objections to antidiscrimination rules. And, although I don’t find arguments for religious exemptions for commercial businesses compelling, “compromise” does sound reasonable. The theory is that each side gives a little to get a little. But what does it really mean to “compromise” on antidiscrimination laws because some have religiously-motivated objections to those rules? Here, it seems that “compromise” means giving in and giving up on full equality.

In a case currently pending before the Supreme Court, the arts and crafts company Hobby Lobby and the furniture manufacturer Conestoga Wood Specialties are seeking to be exempt from covering the full range of FDA-approved forms of contraception in their employee health plans. The companies claim a right to engage in sex discrimination by denying their female employees coverage for certain forms of birth control based on the companies’ religious opposition to this basic health care. 

Should these companies prevail, their female employees will lose out on this important benefit—while the companies continue to cover the range of basic preventive services for their male counterparts. Moreover, because health insurance is a part of an employee’s compensation for work, female workers will see their overall earnings diminish (their male counterparts will not) and still have to pay hundreds of dollars out-of-pocket for this basic health care—and often more for the most effective forms of birth control. Or, because of cost, they will either use a less effective form of contraception or forgo it altogether.  Read more »

Why Courts Matter to Women: Women's History Month

Courts undeniably matter to women—for better or worse. Every day, they decide cases involving the right to have an abortion, to access contraception, to obtain affordable health care coverage, to equal protection under the law, and to fair treatment for women on the job. As March is women’s history month, it is an opportune moment to examine some pending and recent court cases that matter to women.

Two significant cases pending before the Supreme Court, Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, deal with contraceptive coverage under the Affordable Care Act (“ACA”). This month, the Supreme Court heard arguments regarding whether for-profit companies must comply with a portion of the ACA requiring that women receive health insurance coverage for birth control. The employers argue that they have a right under the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment to refuse to grant this coverage based on their religious objections to certain forms of birth control. In essence, they claim that corporations have the liberty to impose their religious beliefs on women and their families, denying women access to critical health care coverage and interfering with a woman’s right to make personal health care decisions for herself. Of course, a for-profit corporation is not a “person” capable of exercising religious beliefs, just as a corporation may not exercise other individual and personal rights such as the right against self-incrimination, and the birth control coverage requirement applies to the company, not to the individuals who own it. Further, even if a for-profit corporation could exercise religion, the birth control coverage requirement does not amount to a “substantial burden” on religious exercise—the standard the companies would need to prove—and including birth control in employee health plans furthers compelling government interests in advancing women’s health and equality and is the least restrictive means of so doing. The NWLC filed an amicus brief in support of the contraceptive coverage requirement in both cases. Read more »

The Supreme Court Hears Arguments in the Contraceptive Coverage Cases: Are the Employees’ Voices and Health Needs Being Heard?

Cross-posted from Alliance for Justice.

The companies seeking to deny women access to a benefit guaranteed under the health care law—coverage of all FDA-approved methods of birth control and related education and counseling without cost-sharing—made some questionable claims yesterday before the Supreme Court. Two in particular are worth exploring, especially since they’ve gotten short shrift in the post-argument analysis.

The first troubling argument was that the government does not have as compelling an interest in requiring insurance coverage for birth control as compared to other health care services. Paul Clement (the lawyer representing the companies) framed his opening by talking about how “religiously sensitive” it is to require birth control coverage. Justices Sotomayor and Kagan questioned this notion, asking how far an exemption for companies with religious objections would go. What about an owner who has religious objections to vaccinations or blood transfusions? Are those “religiously sensitive”? Should a boss be able to deny employees coverage of those health care services because of a religious belief? Clement responded that this case is “easier than” those cases because birth control is “so religiously sensitive, so fraught with religious controversy” and the government may have a “stronger compelling interest [in those cases] than it does” in this case. Read more »

My Health Is Not Your Hobby

This was just one of the many witty slogans held high on posters at the snow-covered rally at the Supreme Court yesterday. Nearly a thousand supporters came out to tell America that women should be able to make their own decisions about birth control – not their bosses.

As I looked at all those women (and men) standing in the freezing cold, soaking wet but still rallying for hours I couldn’t help but think of the women who weren’t there, who believed it wasn’t safe to speak out themselves -- and I was about to speak for one of them. That, and the fact that it was actually snowing in late March in Washington, DC, may end up being the two things that I’ll most remember about the day.

Inside the Court, Justices were hearing arguments on two cases, Hobby Lobby and Conestoga Wood Specialties, brought by for-profit companies that claim that because of their owners’ religious beliefs they should be allowed to break the law and deny their female employees birth control coverage.

Basically, even though 99% of sexually active women have used birth control, and we finally got a law that guarantees women affordable birth control, a bunch of corporations actually went to the Supreme Court because they want to control women’s health care decisions under the guise of free exercise of religion. Read more »

Seventh Circuit Says Notre Dame Cannot Deny Its Employees and Students Access to Birth Control Benefits

Given the range of horrible and ridiculous things that happened last week, we were due for something sensible. On Friday, the 7th Circuit Court of Appeals denied the University of Notre Dame’s request for a preliminary injunction against the birth control benefit. The decision [PDF], written by Judge Posner and joined by Judge Hamilton, affirmed the district court’s earlier denial of relief.

Notre Dame wanted to get out of signing a form that tells its insurer that it has religious objects to birth control, claiming it was a substantial burden on its religious exercise. Note that if Notre Dame got the relief it was asking for, that could mean all of the women and the female dependents with Notre Dame health insurance would no longer have any access to birth control, even where third parties provide that access. To summarize: Notre Dame isn’t satisfied that it got out of the requirement to cover birth control in its health plan, but wants to make sure others don’t provide that access either.  

So, it looks more like Notre Dame wants to interfere with the personal health care decisions of its students and employees rather than stay out of them. But, as the 7th Circuit explains, while a religious institution like Notre Dame may refuse to “engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution.”  Read more »