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After Supreme Court Ruling, Focus Shifts to How Obama Administration and Congress Will Ensure Contraceptive Coverage for Affected Employees

July 1, 2014

In a 5-4 ruling written by Justice Samuel Alito, the U.S. Supreme Court yesterday decided that closely held corporations that assert a religious objection do not have to cover contraceptive services and methods in their employer-sponsored health plans as required under the Affordable Care Act. The Court’s decision hinged on its assertion that there are other “less restrictive” ways for the government to achieve contraceptive coverage for the employees of such companies and their dependents. The onus is now on the Obama administration and Congress to find a way to ensure that these women and families can continue to enjoy the protection and myriad health, economic and social benefits of the current federal contraceptive coverage policy.

The lead plaintiff in the case was the arts and crafts chain Hobby Lobby, along with another for-profit corporation. While undoubtedly undermining contraceptive access, the ruling does not affect the vast majority of women with private insurance coverage nor does it impact women who receive coverage for family planning through public insurance programs such as Medicaid. It is unclear how many companies will now be eligible to make a religious claim and how many women could be affected, since closely held corporations such as Hobby Lobby still can employ tens of thousands of people. It is doubtful, however, that large numbers of such corporations will assert a religious exception to contraceptive coverage since most of them do not consider themselves religious. Further, it makes good business sense for companies to continue to provide this important benefit that most U.S. women already have.

However, despite its potentially limited impact, the decision is very troubling for multiple reasons. Chief among them is the fact that five Supreme Court justices singled out contraception as a health service against which private companies may discriminate. More than 99% of women aged 15–44 who have ever had sexual intercourse have used at least one contraceptive method.

As far as finding a less restrictive means to ensuring coverage, the Court suggested that employees of companies that reject covering contraceptives could come under the umbrella of an existing accommodation for a broad range of nonprofit organizations (such as universities, hospitals or social relief agencies) that object to contraception on religious grounds. The Obama administration last year set up a mechanism so that employees of such organizations will have seamless coverage of contraceptive services without out-of-pocket costs. (A narrow group of religious employers closely tied to houses of worship are exempt entirely.)

Under this accommodation, coverage is arranged through a third-party insurer or administrator and, as the administration puts it, “an eligible organization need not contract, arrange, pay or refer for contraceptive coverage” to which they object on religious grounds. The Court’s majority opinion indicated that such a mechanism would not violate the beliefs expressed in these cases by the for-profit employers that challenged the requirement. However, this accommodation—as applied to nonprofits—is itself subject to numerous court challenges, one or more of which will likely be heard by the Court during its next term.

The Obama administration has not yet indicated what specific actions it might take in response to the Court’s ruling, but it has stated that it “will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.” The administration could take the Court’s suggestion and expand the existing accommodation to closely held for-profit corporations that assert a religious objection to some or all contraceptive services and methods. Congress, too, could act through new legislation to protect employees and their family members from their employers’ objections.

It is noteworthy that, given the opportunity to do so, the Court’s conservative majority did not reject the premise that the government has a compelling interest to promote contraceptive access, instead stating that for purposes of argument, “we assume the HHS regulations satisfy this requirement.” Indeed, in an impassioned dissent, Justice Ruth Bader Ginsburg—citing the Guttmacher Institute’s amicus brief —made it clear that the government’s case for the contraceptive coverage policy is very strong. Decades of scientific evidence and the life experiences of millions of women show that contraception enables women to prevent unintended pregnancies and to plan and space wanted pregnancies. That, in turn, has numerous health benefits for mothers and babies and promotes women’s educational, economic and social advancement.

For more information:

Guttmacher Supreme Court amicus brief

Fact sheet: Contraceptive Use in the United States

Analysis: Contraceptive Coverage at the U.S. Supreme Court: Countering the Rhetoric with Evidence

Analysis: The Case for Insurance Coverage of Contraceptive Services and Supplies Without Cost-Sharing

Research: Review of Scientific Literature Documents the Significant Social and Economic Benefits of Contraception

Research: Contraceptive Use Is the Norm Among Religious Women

Video: Benefits of Contraceptive Use