The new Supreme Court term starts today, and sometime this fall the court will consider whether to hear challenges to the Affordable Care Act’s requirement that health insurance provide coverage for contraception without a co-pay.
Wait — didn’t that already happen, you ask?
Yes, it did. Last summer, the Supreme Court dealt a blow to women’s rights when it held that Hobby Lobby had the right to deny contraception coverage to its female employees because doing so would have contradicted its owners’ religious beliefs.
In deciding Hobby Lobby, the court relied on the fact that the government had already developed a religious “accommodation” for certain employers that still ensured that employees could get contraception coverage. This accommodation — then in place for religiously affiliated nonprofit organizations — allows an employer to send a form to its insurance company or the federal government stating that the employer has a religious objection to covering contraception. Then, the insurance company works directly with the employee to provide her the coverage she needs. In other words, all the objecting employer has to do is raise its hand and say, “I object!” and the insurance company takes care of everything else.
In July, the Obama administration extended the accommodation to closely held for-profit companies, like Hobby Lobby, that have a religious objection to providing contraception coverage.
Now it’s time for Part 2 of the legal saga: challenges to that very accommodation.
Several religiously affiliated employers sued over the accommodation because they refuse to even fill out the form. The government isn’t telepathic. It has to know when an employer is going to “opt out.” And that’s why the two-page form is necessary.
If you’re scratching your head, you’re not alone. Eight federal appeals courts have considered the cases so far. Seven of them also scratched their collective heads and concluded that filling out a form isn’t a substantial burden on religious beliefs. As one of those courts put it, “The regulatory requirement that [employers] use a sheet of paper to signal their wish to opt out is not a burden that any precedent allows us to characterize as substantial.” Only one court has reached the opposite conclusion.
If the court strikes down the accommodation, there will be no insurance coverage for contraception for women who work at Hobby Lobby, Notre Dame, Domino’s Farms, Eden Foods, and the many other employers that brought lawsuits against the contraception rule. Limiting women’s access to contraception coverage is sex discrimination. Women already pay more for health care than men. And contraception is crucial for women's equal participation in society. Being able to decide whether and when to have children has a direct effect on women's ability to make their own paths in terms of their schooling, their careers, and their families. Religious liberty is a fundamental value and one that we fight for here at the ACLU. But religious freedom doesn't give employers the right to discriminate against their female employees.
It is likely that the Supreme Court takes one of these cases, especially given that the federal government has now agreed that the court should step in. And if that happens, we will weigh in, just like we did when the court took the Hobby Lobby case. But we hope this isn’t Hobby Lobby déjà vu all over again: We hope that the court gets it right this time.