Challenges to the Federal Contraceptive Coverage Rule

As part of the Affordable Care Act, the federal government issued a rule that requires health plans to cover contraception without a co-pay. This rule is a tremendous step forward toward greater equality for women.  The rule seeks to eliminate disparities in health care costs between men and women, and to remove barriers to access to contraception.  Access to contraception is crucial for women to be able to decide whether and when to become a parent, which in turn allows them to participate equally in society. 

Over one hundred cases have been filed challenging the rule as an infringement on religious liberty. These cases have been brought by both for-profit and nonprofit companies. In these cases, the ACLU is defending the anti-discrimination rule. While religious freedom gives us all the right to our beliefs, it doesn't give institutions or individuals the right to impose their beliefs on others or to discriminate.

Challenges by nonprofit employers: Under the contraception rule now in place, nonprofits with religious objections to covering contraceptives are provided an accommodation: Nonprofit organizations that object to contraceptive coverage on religious grounds may notify their insurers or the government (which will in turn notify the insurer) of their objection; the insurer must then arrange and pay for the contraceptive coverage separately.  The accommodation was designed to ensure employees would receive contraception coverage but the nonprofit employer with religious objections would not bear the cost or administer the coverage.  Cases challenging the accommodation are currently making their way through the courts. We expect the Supreme Court will ultimately hear one of the cases. There is currently a circuit split among the courts of appeals that have decided these cases thus far; seven out of eight circuits have found that the accommodation does not infringe on religious liberty.  The Eighth Circuit is the only appeals court that has deemed the accommodation a substantial burden on the exercise of religion and determined at the early stage of the case that the accommodation is not the least restrictive means of furthering the government’s interests.  All circuit decisions in the nonprofit cases can be found below.

Catholic Archdiocese of New York v. Burwell, 796 F.3d 207 (2nd Cir. August 7, 2015).

Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422 (3rd Cir. February 11, 2015).

East Texas Baptist Univ. v. Buwell, 793 F.3d 449 (5th Cir. June 22, 2015).

Mich. Catholic Conference v. Burwell, No. 13-2723, 2015 WL 4979692 (6th Cir. August 21, 2015).

Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. May 19, 2015).

Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. July 1, 2015).

Grace Schools v. Burwell, No. 14-1430, 2015 WL 5167841 (7th Cir. Sept. 4, 2015)

Dordt College v. Burwell, No. 14-2726 (8th Cir. Sept. 17, 2015)

Sharpe Holdings v. Burwell, No. 14-1507 (8th Cir. Sept. 17, 2015)

Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir. July 14, 2015).

Priests for Life v. U.S. Dep't of Health & Human Servs., 772 F.3d 229 (D.C. Cir. November 14, 2014)

Challenges by for-profit employers: On June 30, 2014 the Supreme Court held in Hobby Lobby and Conestoga Wood that closely held corporations can refuse to comply with the federal contraception rule based on their religious beliefs. Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).

In the wake of the Supreme Court’s decision, the administration proposed a new rule extending its accommodation to closely held for-profit corporations.  That rule has not yet been finalized.   

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The cases challenging the contraception rule are only one set of cases in which institutions and individuals are seeking an exemption from anti-discrimination rules, on the ground that the compliance with the laws violate their religious beliefs. There are cases of inns and bakeries closing their doors to same-sex couples and of religious schools firing employees who are unmarried and pregnant, for example, in the name of religion.


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