Putting Data Front and Center in Contraceptive Coverage Supreme Court Case

The time is now. Will you stand up for reproductive health and rights?

First published online:

The U.S. Supreme Court should hold that religiously affiliated nonprofits cannot invoke their religious views to block their employees and their employees’ dependents from receiving the contraceptive insurance coverage that is guaranteed under the Affordable Care Act (ACA), argues a friend-of-the-court brief filed by the Guttmacher Institute and George Washington University Harold and Jane Hirsh Professor of Health Law and Policy Sara Rosenbaum. The brief’s legal team was led by Anna-Rose Mathieson of the California Appellate Law Group, former Acting Solicitor General Walter Dellinger of Duke University School of Law and Indiana University Maurer School of Law Professor (and Guttmacher board member) Dawn Johnsen.

Under the ACA, employer-sponsored health plans are required to cover certain preventive health services without out-of-pocket costs, including contraceptive methods, counseling and services. Churches are exempt from this requirement, and the ACA provides an accommodation for religiously affiliated nonprofits and certain private corporations with religious objections to contributing to or facilitating contraceptive coverage: Once a qualified employer notifies their health insurance company or the federal government of their objection, the employer has no obligation to provide contraceptive coverage. Instead, a third party steps in to ensure seamless coverage and access to care for affected employees and their families.

Zubik v. Burwell combines seven cases in which religiously affiliated nonprofits have asserted that this accommodation violates the Religious Freedom Restoration Act. Oral arguments in the case will be held on March 23.

The Guttmacher-Rosenbaum brief makes the case for why the government has a compelling interest in ensuring seamless contraceptive coverage, presenting extensive data from the Guttmacher Institute and other leading authorities to demonstrate the fundamental importance of effective family planning for women, families and society. The brief also counters misinformation and directly rebuts several false arguments that opponents of the federal contraceptive coverage guarantee have perpetrated, clarifying numerous key points for the legal record, including:

  • methods of contraception differ dramatically in their effectiveness in preventing unintended pregnancy;
  • methods are not interchangeable medically, or in terms of their appropriateness or ease of use for a given woman at a given point in her life;
  • cost is a substantial barrier to women’s ability to choose and use the best method for them based on their individual circumstances and health needs;
  • removing cost barriers—as the federal policy currently requires—has been proven to make a substantial difference in facilitating access to contraceptive services; and
  • improved access to effective contraception reduces women’s risk of unintended pregnancy, which in turn advances the health and well-being of women and children, reduces the need for abortion, and promotes women’s education, workforce participation and economic advancement.

The brief also details why the contraceptive coverage guarantee is the most effective way to achieve the policy goal of giving millions of U.S. women access to contraceptive services without out-of-pocket costs, while creating the least burden on objecting employers. In particular, the brief finds that proposed alternate approaches to the ACA’s accommodation are essentially unworkable. The alternatives would put the burden on female employees and family members who obtain health insurance through objecting employers by requiring them to seek and secure alternate coverage for contraceptive care—if such coverage could be found at all. This burden on individual women would be substantial, interfering with their ability to effectively plan whether and when to have a child in accordance with their own religious and moral beliefs, health needs and family responsibilities. The brief concludes that these various burdens and barriers would fundamentally frustrate the government’s compelling interest in increasing contraceptive access.

This excerpt from the Summary section highlights the Guttmacher-Rosenbaum brief’s key arguments (see here for the full brief, including all citations):

The contraceptive coverage guarantee of the Affordable Care Act (ACA) allows women to choose the best, most effective methods of contraception for their needs, consistent with their own religious and moral values. Removing cost barriers to effective contraception provides women equal access to essential health care, reduces women’s risk of unintended pregnancy, decreases the need for abortion, promotes women’s education and workforce participation, and enhances the health and economic security of women and families. The extraordinary importance of effective contraception led the federal Centers for Disease Control and Prevention to name improved family planning one of the ten great public health achievements of the 20th Century.

Without the contraceptive coverage guarantee, cost would be a major factor for women choosing among different methods of contraception. Empirical evidence demonstrates that cost concerns drive women towards methods that are far less effective in preventing pregnancy. For example, a hormonal intrauterine device ("IUD") is 90 times more effective than male condoms in preventing pregnancy during the first year of typical use. Yet while male condoms are relatively cheap and widely available, an IUD can cost a month’s salary for a woman working full time at minimum wage, and women who face high out-of-pocket IUD costs are significantly less likely to obtain one.

The ACA’s contraceptive coverage guarantee helps privately insured women access their choice of contraceptive methods without such cost constraints. Extensive evidence demonstrates that removing cost barriers improves women’s access to effective contraception and reduces women’s risk of unintended pregnancy.

The accommodations offered by the government ensure that women can obtain contraceptive services from their regular health care providers as part of their regular medical care, while putting no burden on objecting employers to provide or pay for that coverage. No other option can further the government’s compelling interests as effectively.

The alternatives that petitioners propose would put the burden on individual women to seek and secure additional contraceptive coverage. As studies have proven consistently across a wide variety of contexts, placing the burden on individuals to "opt in" dramatically undermines the effectiveness of programs. Petitioners’ alternatives would decrease the overall use of the most effective methods of contraception, stigmatize contraceptive services, and erect financial and logistical obstacles to care that could deny women the ability to receive care from their desired provider at the same time they receive other relevant care.

The government has for decades demonstrated its commitment to giving women access to family planning services and supplies as part of comprehensive and integrated insurance coverage. Judge Brett Kavanaugh summed up the benefits well: "Reducing the number of unintended pregnancies would further women’s health, advance women’s personal and professional opportunities, reduce the number of abortions, and help break a cycle of poverty that persists when women who cannot afford or obtain contraception become pregnant unintentionally at a young age." The ACA’s contraceptive coverage guarantee is the least restrictive means of furthering these compelling interests.

See the full brief here: Brief of the Guttmacher Institute and Professor Sara Rosenbaum as amici curiae in support of the government