U.S. Supreme Court Hears Oral Arguments in Second Attack on ACA Birth Control Benefit

Today the U.S. Supreme Court will hear oral arguments in Zubik v. Burwell, in which religiously affiliated organizations are seeking to prevent their employees from accessing affordable insurance coverage for contraception, even when that coverage is provided by a third party. The organizations claim that the requirement to complete a one-page form stating their objection to birth control coverage is an impermissible burden on their religious beliefs.

Today's arguments come less than two years after Burwell v. Hobby Lobby, in which the Supreme Court ordered the Obama Administration to make the third-party accommodation - previously only applicable to non-profit entities - available to closely held for-profit corporations. Eliminating the accommodation would result in women being denied a benefit they are entitled to as a matter of law under the Affordable Care Act, based solely on the religious beliefs of their employers.

Said Nancy Northup, president and CEO of the Center for Reproductive Rights:

"Access to affordable contraception is essential to women's equality and economic security. Denying any woman the health care she needs and is guaranteed by law is discrimination, plain and simple.

"The burdens a woman faces when she is denied access to affordable contraception and reproductive health care vastly outweigh the negligible task of filling out a one-page form.

"We are confident that the nation's highest court will protect a contraception coverage benefit that empowers millions of women and ensures that no woman's boss can control her personal decisions about health and family."

The Center for Reproductive Rights filed an amicus brief in support of the federal government in February. Brief signers included leading comparative and international law experts who consulted laws around the world and concluded that the claims being made by the religiously affiliated groups were unprecedented, and cautioned that the Supreme Court should be wary of making the United States a global outlier.

Case History - Zubik v. Burwell:

The U.S. Supreme Court agreed in November 2015 to hear seven cases in which nonprofit organizations seeking to interfere with employees' access to affordable health care under the ACA. These consolidated cases challenge a federal policy allowing employers to shift the obligation to cover all FDA-approved forms of contraception onto a third-party administrator or insurance company by filling out a simple one-page form. The plaintiffs argue that completing this form represents a "substantial burden" on their beliefs, in violation of the Religious Freedom Restoration Act of 1993.

The Affordable Care Act--which was signed into law more than three years ago and upheld in 2012 by the U.S. Supreme Court--vastly expands women's access to preventive health care without copayments, including contraception, cancer screenings, HIV and STI testing, well-woman visits, breastfeeding support, and prenatal and post-partum care and counseling. After decades of inconsistent coverage of contraception by insurance plans, the health care law requires all insurance policies to cover birth control with no out-of-pocket cost to women.

Ninety-nine percent of all sexually active women in the U.S. use birth control at some point during their reproductive years. The Affordable Care Act's expanded coverage for contraception vastly increases the accessibility of birth control for women who need it, especially those interested in using long-acting reversible contraception like intrauterine devices (IUDs), which are more effective, but often have a higher up-front cost.

The United States has rightfully cited the benefits of the Affordable Care Act as evidence of the nation's compliance with its human rights treaty obligations and other global agreements on sustainable development. The brief also demonstrated that courts and statutes around the globe have recognized that individual religious or conscience rights only apply to those directly providing care, and not to institutions or businesses.