Will the Supreme Court Slash Birth Control Access?
On Wednesday, the Supreme Court once again wades into the thicket of men’s reproductive health and sexual freedom. The case raises the issue of whether an employer can object to basic health care that men need to live their healthiest lives — health care that sometimes means the difference between them being able to stay in the workplace and having to quit so they can care for an unplanned child.
Just kidding! When would employers ever object to men having sex, or meddle in their reproductive health? And when would the Supreme Court ever hear a case about a sex-specific health issue not involving women? We all know the answer to those questions: Never.
Of course, what the high court is actually jumping into this week is who gets to control women’s reproductive health and sexual lives — women themselves or their employers? (Three weeks ago the argument was over legislators.)
The case is Zubik v. Burwell, the fourth time Obamacare has come before the Supreme Court, and the second time the health care law’s requirement that employer-provided health insurance cover contraceptives has come before the Court. Last time, Obamacare lost. This time, it should prevail. The big question is: By how much?
It all started before Obamacare, when employer-provided health insurance plans varied in covering contraceptives. Women’s rights and health groups launched a legal and political campaign to require employers to cover contraceptives, arguing that carving them out of otherwise comprehensive plans was both discriminatory (because men’s health care needs were covered) and costly (because an unplanned pregnancy leading to childbirth and decades of dependent care is way more expensive than any form of contraception). Lots of employers, courts and legislators — even Mike Huckabee’s Arkansas! — agreed, but not all did, leaving many women paying for contraceptives out of their own pocket.
Under President Obama’s signature legislative accomplishment, his administration heeded the call of these advocates and required employers to cover all forms of FDA-approved contraceptives. Understanding the religious liberty issues presented by the requirement, the administration carved out an exemption for houses of worship that had an objection to contraceptives. The exemption was narrow though, and did not cover religious non-profits nor for-profit corporations owned by religious people.
Enter Hobby Lobby, the arts-and-crafts store owned by a devout religious family who objected to contraceptives. The law has no exemption or accommodation for for-profit entities, so the company sued, claiming that the requirement that it provide contraceptives to its employees violated the federal Religious Freedom Restoration Act, a law that protects against federal laws that substantially burden religious freedom. In 2014, a closely divided Supreme Court agreed with Hobby Lobby, finding that forcing Hobby Lobby to provide contraception to its employees infringed on the family’s religious beliefs.
In that opinion, the Court noted that there were other ways the Obama administration could guarantee women have access to preventive medicine such as contraception. The administration could pay for contraception itself or, the Court said, the administration could take a page from how it accommodates religious non-profits. Religious non-profits, according to the law, have a work-around: If they self-certify to the government or their insurer that they object to contraception, they do not have to pay for it as part of the plan; rather, the insurer will still cover contraceptives with the help of the federal government.
The accommodation requires less-than-minimal effort on the part of religious non-profits and was referred to positively by the Supreme Court majority in the Hobby Lobby case… so naturally, religious non-profits objected. Cases have sprung up around the country of colleges, charities, hospitals and schools claiming that even this accommodation goes too far because the minor act of notification still leads to something abominable: women having contraceptive coverage.
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