Last year, the debate over insurance coverage for birth control was held on the presidential campaign trail and in Congress. On Tuesday, the Supreme Court is expected to decide whether it will take up the controversy.
The Court is considering several cases brought by private, for-profit employers, among 43 such cases that have been filed. The employers say the Affordable Care Act’s requirement to fully cover birth control in insurance plans violates religious liberty – the company’s religious liberty. Most Court watchers expect it to accept the case brought by Hobby Lobby, a craft-store chain that won at the Tenth Circuit of Appeals, and which the solicitor general requested the Court hear.
The Obama administration has argued that protections for religious liberty under the Religious Freedom and Restoration Act or under the First Amendment apply to individuals, not corporations. It also says that “an employee’s decision to use her health coverage to pay for a particular item or service cannot properly be attributed to her employer,” and that contraceptive coverage is important in ensuring both public health and women’s equality.
“This benefit was put into place in order to eliminate gender inequality in healthcare. A big part of that is the out-of-pocket expenses in contraception,” said Gretchen Borchelt, senior counsel at the National Women’s Law Center. “This would say to a low-wage worker that she has to pay out of pocket when women all around the country are getting it without a co-pay, just because her boss doesn’t think her using birth control is right.”
But Kyle Duncan, lead attorney on the Hobby Lobby case and general counsel at the Becket Fund for Religious Liberty, told msnbc, “We’ve said all along that there’s no basis for picking out one corporation, the non-profit versus the profit-making one, and saying that one can exercise religion and the other can’t.” While employers can’t stop their employees from using birth control (including paying for it with their wages), Duncan said, “Their moral objection is being made to participate in the process.”
Religious institutions like churches are already exempted from the provision, and religiously affiliated non-profits have a work-around that allows employees to get coverage directly from the insurer. In some of the cases before the court, the private companies have argued that those exemptions, along with a one-year delay for some organizations to comply, mean the interest can’t be that compelling and that they, too, should be exempted.
According to Planned Parenthood, about 27 million women are already benefiting from birth control coverage without cost-sharing. Supporters of the policy hoped that more women would be able to switch to more effective forms of birth control that have higher upfront costs, such as the IUD.
Supporters of the contraceptive mandate say employers shouldn’t have the right to essentially impose their religious beliefs on their employees. “There’s a long history of cases where the courts have rejected the ability to use religious beliefs as a way of discriminating against other people,” said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project.
Throughout last year’s presidential campaign, Republicans, including Mitt Romney, accused Barack Obama of attacking religious liberty with the Affordable Care Act’s requirement that insurance plans cover birth control. The president defended the provision, calling contraception “an economic issue for women.” “Gov. Romney not only opposed it, he suggested that in fact employers should be able to make the decision as to whether or not a woman gets contraception through her insurance coverage,” said Obama in the second presidential debate.
Later, Senator Roy Blunt introduced an amendment that would allow an employer to refuse to cover any service that violated the employer’s conscience. It failed, but became a political cudgel that broke in the Democrats’ favor.
But for opponents of birth control coverage, the Supreme Court may go where politics failed.
Duncan claimed that his clients are seeking only a narrow result, and only for private, closely-held corporations. “The point is not to overturn the Affordable Care Act or even to overturn this particular regulation for everyone; it’s simply to seek exemptions for people,” he said.
But if the Court does take up one of the birth control refusal cases and eventually rules that a corporation has the same religious liberty rights as a person, the longer-term impact on corporate regulations could be sweeping. That’s what Solicitor General Donald Verrilli warned in his request that the Court settle the question through the Hobby Lobby case. The Religious Freedom and Restoration Act, enacted to protect minority interests, would be “transform[ed] from a shield for individuals and religious institutions into a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws.”
In other words, corporations could be allowed to opt out not only of health coverage for religiously contested services — including vaccinations or blood transfusions — but labor regulations. Some organizations have already been testing this: Duquesne University has claimed that its Catholic affiliation means it cannot allow graduate students to unionize.
Irin Carmon