Symposium: Women’s compelling need for contraception – met by insurers, not objecting employers

Marcia D. Greenberger is co-president of the National Women’s Law Center.

In Zubik v. Burwell, the Court will consider whether the government can, consistent with the Religious Freedom Restoration Act (RFRA), accommodate religiously affiliated non-profit employers objecting to the Affordable Care Act (ACA) requirement that their insurance plans cover contraception by requiring that insurance companies provide the coverage directly to the women who would otherwise be left without it.

As part of the ACA’s effort to make important preventive services more available, key preventive services, like contraception, must be covered without cost-sharing – no deductibles or co-pays. The removal of financial barriers is designed to help individuals stay healthy and address problems before they become untreatable. Because existing preventive services requirements did not adequately reflect women’s needs, and women were more likely to go without necessary health care due to cost, the ACA contains a “women’s preventive services” provision requiring the Department of Health and Human Services (HHS) to determine the key women’s services to be included. HHS relied on the experts to do so. An Institute of Medicine expert panel identified contraception as one of eight key women’s preventive services, and evidence of the resulting tremendous step forward for women’s health is pouring in.

Some employers with religious objections to contraception have used RFRA to challenge the accommodation provided to them as insufficient. RFRA prevents the government from imposing a substantial burden on the exercise of a person’s religious beliefs unless it furthers a compelling interest and uses the least restrictive means for advancing that interest. Seven of eight federal courts of appeals found that the accommodation at issue in this case is consistent with RFRA.

In addition to these lower courts, guidance comes from Burwell v. Hobby Lobby Stores, Inc., in which the Court concluded two Terms ago, in a five-to-four decision, that certain closely held for-profit companies could be considered “persons” under RFRA. The Court pointed to the very accommodation provided to the non-profits and now before the Court as demonstrating that less restrictive means were available for their employees to receive contraceptive coverage, and it addressed in some key respects the contours of this accommodation. In fact, in response to the Hobby Lobby decision, the government extended the accommodation to closely held for-profits similar to Hobby Lobby with religious objections..

Under this two-part accommodation, such an employer need only notify either its insurer or HHS of its religious objections to contraception to be relieved of its coverage obligation. Under the second part, the insurance company must provide the ACA-required benefit directly to the women without the participation of the objecting employer.

The non-profits in this case now argue that the notification requirement itself substantially burdens their religious beliefs, that the government’s interests are not compelling, and that alternatives less burdensome to them should be required. The seven courts of appeals holding otherwise largely did so on the grounds that the simple notification required of the objecting employer is not a substantial burden, most thereby having no need to reach the other prongs of the RFRA test. Clearly they are right. The objecting employers erroneously characterize their notification as a trigger for the contraceptive coverage. But as seven courts of appeals held, the opt-out notice by the objecting employer does not trigger contraceptive coverage. It is the law itself that requires this coverage by the insurance companies.

And the challenge to the accommodation must fail under the remaining prongs of the RFRA test as well. Regarding whether the government has a compelling interest in the provision of contraception without cost-sharing, five Justices of the Court have already squarely found that it does. In a concurring opinion, Justice Anthony Kennedy stated that “the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.” Justice Ruth Bader Ginsburg, writing for the four Justices in the Hobby Lobby dissent, concluded that “the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well-being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence.” Both post-Hobby Lobby courts of appeals that reached the question whether the accommodation furthers a compelling interest agreed. As the D.C. Circuit said, “the accommodation is supported by the government’s compelling interest in providing women full and equal benefits of preventive health coverage, including contraception.”

Indeed, the record is replete with studies showing that contraception is highly effective in treating some health conditions and also reducing unintended pregnancy, which can have severe negative health consequences for both women and children. Studies also show that preventing unintended pregnancy depends on correct and consistent use of contraception, which in turn depends on women having the economic wherewithal to secure medical services to determine and then obtain the method of contraception most appropriate for them. The important impact of the contraceptive coverage requirement has only been underscored by recent developments since the Hobby Lobby decision. It is estimated that fifty-five million women with private insurance coverage are now eligible for contraception without out-of-pocket costs, many women are now using that coverage, and the high out-of-pocket costs of certain contraceptive methods have decreased significantly or been eliminated entirely.

Given this compelling interest, which was even assumed by the other four Justices in the Hobby Lobby majority, the remaining question in this case is whether less burdensome means exist by which the government can effectively advance this compelling interest in providing women with meaningful access to the medically appropriate methods of contraception without out-of-pocket costs.

In their discussion of alternative accommodations under RFRA, both Justice Samuel Alito’s opinion in Hobby Lobby and the Kennedy concurrence looked at not only the effect on objecting employers’ religious beliefs, but also the effect on the compelling interest that women receive effective access to medically appropriate contraception. Applying this approach, the Kennedy and Alito opinions addressed two alternative accommodations: the government paying directly for contraception and the accommodation at issue now, which had already been offered to non-profit employers. Kennedy stated that the accommodation “equally furthers” the government’s compelling interest in ensuring women such access. The Alito opinion stated that employees under the accommodation have the same access to contraception as those who work for non-objecting employers. Given the existing accommodation, neither opinion saw a need to create a whole new government program.

The objecting employers in this case are proposing a variety of government programs, including some in which there are government incentives rather than direct government payments. The myriad ideas proposed, often without details, share fatal flaws. They all remove contraception from a woman’s regular insurance system, impose additional logistical burdens, and reinstate the very economic hardships that the contraceptive coverage benefit was designed to remove. The D.C. Circuit, in considering a range of those proposed alternatives, recognized that none would be a less restrictive means, concluding that, “[e]ven assuming that any alternative program had or would develop the capacity to deal with an enormous additional constituency, it would not serve the government’s compelling interest with anywhere near the efficacy of the challenged accommodation and would instead deter women from accessing contraception.”

Two that have been repeatedly mentioned are tax credits and manufacturer incentives. A tax credit would require a woman to pay up front for her contraceptive needs, not only an insurmountable financial barrier for many women without the ability to make that payment, but also of little financial benefit to those in most financial need. For example, an IUD, one of the most effective forms of birth control, can have upfront costs of up to one thousand dollars, nearly a month’s full-time salary for a minimum-wage worker.

And, of course, throughout income levels a net tax benefit is hardly equivalent to the no-cost provision in the current accommodation. Beyond the enhanced and for some crushing financial barriers created by this approach, the additional administrative barriers imposed on women to negotiate the tax system can be daunting.

Regarding the proposal that the government provide incentives for manufacturers of birth control to offer their birth control for “free,” there is no guarantee that any manufacturer would even agree that such “incentives” were sufficient, let alone that manufacturers of all of the methods would participate. Nor did the objecting employers who made this suggestion opine on how such a system could be implemented or how it could work in practice.

In sum, Hobby Lobby itself demonstrates that the challenge to the accommodation is without merit. The Court has already established and accepted the compelling government interest in ensuring women receive contraception. The negative effects of the economic and other barriers to access of the proposed alternatives have been identified, including in detail by some of the lower courts. And the absence of any burden on objecting employers that even approaches being substantial has been recognized by the vast majority of lower courts considering the issue. The overwhelming legal case in support of the accommodation is good news for the lives, health, and futures of women and their families, who will be stronger and more secure because of the important benefit it provides. Women in this country deserve and need real access to contraception, regardless of who their employer may be.