Should Your Boss’s Religious Beliefs Dictate Your Health Insurance Coverage? Supreme Court Nominee Judge Gorsuch Thinks So

One of the most popular components of the Affordable Care Act is the requirement that health insurance companies cover birth control without a co-pay.  Over 55 million women have benefitted from the coverage.  Nevertheless, over the last several years there has been an onslaught of court challenges to the birth control benefit by employers with religious objections to including the coverage in their employees’ health plans. 

Judge Neil Gorsuch, President Trump’s pick for the Supreme Court, has played a key role in these cases.  In each one he sided with the employers who claimed a right to use their religious beliefs to block their employees’ contraception coverage.  In doing so, he showed little regard for the women affected by imposition of their bosses’ religious beliefs, and failed to acknowledge how important contraception coverage is to women’s health and equality. 

Round one in the battle against the birth control benefit was brought by arts-and-crafts giant Hobby Lobby, and other for-profit companies, which had a religious objection to providing contraception coverage in their employees’ health plan.  Before Hobby Lobby’s case reached the Supreme Court, the Court of Appeals for the Tenth Circuit ruled in favor of Hobby Lobby.  In that decision, Judge Gorsuch wrote a separate opinion to underscore that the family that owns Hobby Lobby would be complicit in sin if it allowed their employees’ health insurance company to cover contraception.  Judge Gorsuch’s failure to give weight to the harms inflicted on women by these asserted religious exemptions is troubling.

Although the Supreme Court narrowly sided with Hobby Lobby, even the five justices who ruled in favor of Hobby Lobby considered the impact on women employees.  The court noted that the government already had a system in place for religiously affiliated non-profit organizations that allowed those employers to opt-out of paying for contraception coverage by filling out a simple form, and instead the health insurance company would pay for the contraception coverage.  This opt-out system, the court reasoned, could just be extended to religiously affiliated for-profit companies, and the impact on the employees would be “precisely zero.”

Round two in the battle against the birth control benefit was brought by a nursing home called Little Sisters of the Poor Home for the Aged, and other religiously affiliated non-profit organizations.  Those employers objected to the opt-out system itself, arguing that filling out the form to opt out of providing contraception violated their religious beliefs.  Eight of the nine courts of appeals to consider these challenges, including the Tenth Circuit, held that filling out a form did not substantially burden the employers’ religious beliefs.  But Judge Gorsuch joined an opinion arguing that the Tenth Circuit should reconsider the decision in the Little Sisters of the Poor case siding, once again, with the employer. 

When the Litter Sisters case, and others, reached the Supreme Court, under the name Zubik v. Burwell, the court did not decide the legal question but instead sent the cases back down to the lower courts to see if there was a way to appease the employers while still ensuring that women received contraception coverage.  Again, the Supreme Court recognized the impact on female employees.    

Judge Gorsuch’s disregard for the effect on women in these cases is troubling.  If an employer blocks its employees’ access to contraception coverage, that employer is discriminating based on sex.  Women already pay more for health care than men, and the contraception coverage requirement was designed to reduce that disparity.  Equally important, 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.

There is no question that religious liberty is a fundamental value, and one that we fight for here at the ACLU every day. But religious freedom shouldn’t give employers the right to discriminate against their female employees.

So when the Senate considers whether to confirm Judge Gorsuch to the highest court in the land, senators should ask him whether he believes women have the right to decide when to have children, and whether he believes that women should be treated equally in society. 

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My guess is that the Judge Gorsuch may have thought they would exercise their right to find a different job if their religious views were different. What women these days have done to feminism is shameful. After years of fighting the notion a woman needed a man to take care of her, today's woman needs THE man to take care of her. Instead of doing something strong and independent and empowered like finding a different job, she waits around, sits on her hands, whines, complains, and waits for Big Brother to rescue her.


Find a different job?!? How about find an ANUS if you don't want to get a woman pregnant because now they don't have access to contraception and men seem to not feel responsible for birth control like we do. And yes, I am assuming you are male by the way you talk about, "what women these days have done...", and to be clear, I am not suggesting an anus from a female body. Good luck.


On the other hand, women and employers have to pay for your boner pills. That's ok to you, I bet. Many women take birth control pills for medical issues. Not to bright are you?


Your a complete ASS- From an independent woman who does NOT need a man.


Why should women HAVE to get a different job just over insurance coverage?? A person's religious views are their own personal choice, and should never be imposed on others, as we ALL have the right of religious freedom under the constitution, not just business owners or CEO's of companies.

Jennifer Francis

Hi second Anonymous, I'm a woman and I agree completely with what first Anonymous has said (I think it could have been said a little nicer, but still...). I also agree a lot with the article, and that is why I come to the complete opposite conclusion.

A while back, people were rolling their eyes at Kim Davis for refusing a marriage certificate for a gay couple. Reactions included saying that if you work at Walmart you don't get the right to refuse checkout to a person buying a condom if you're Catholic, or pork if you're Muslim, yadda yadda. The reason? Because you don't get to decide to go against the rules of your employer. The job requires this particular thing, so you comply. Don't like it? Quit and get a new job. Yet now we have this... and suddenly "quit and get a new job" is considered hate speech.


Actually, I am female, but just embarrassed by many of my female counterparts. Where I live, our county health department provides free contraceptives, so again, women have alternatives, but they don't choose to take them.


And how long do you think counties will be able to provide free contraception under this administration? Doubtless their funding for other programs will be cut over it until they are forced to stop.


I'd like to know where you live and have a country health department that gives free contraceptives. None of them give anything "free"'s based on ability to pay, and most DO pay for them.

Richard A.

I say quit the job or don't work for them at all. Leave them in the lurch, take away their money and keep your dignity.
I own my own business and we don't do this, and we always operate in the black. We also have almost no turnover or people leaving bc they're unsatisfied and I've never need to file bankruptcy, even in the lean years.
I have a daughter & I told her to ask how they run their business before she takes the job, I told her she's interviewing them as much as they are her and not to feel like she needs to stay and put up with certain behaviors.
If the only way they're going to start doing ANYthing reasonable is to feel the pain of a fiscal loss then give it to them with no regrets.
You won't treat my daughter this way and think you'll get away with it. She's a person, not a life support system for a lay.


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