U.S. Supreme Court Sends Second Challenge to ACA Birth Control Benefit Back to Lower Courts

(PRESS RELEASE) Today the U.S. Supreme Court remanded Zubik v. Burwell, the second major challenge to the Affordable Care Act’s birth control benefit, back to the lower courts for further proceedings.  The Court declined to resolve key legal questions, leaving the fate of religious nonprofit employees’ access to contraception in limbo.

The challenge to the birth control benefit was brought by religiously affiliated nonprofit employers seeking to block women from receiving contraceptive coverage from their insurers.  The Court encouraged the parties to resolve their differences through an approach that would ensure women “full and equal health coverage, including contraceptive coverage.” 

As a result of the Court’s order, final resolution of the legal questions at issue must wait until another case makes its way to the Supreme Court.

The employers argued that filling out a one-page form, which allows insurers to offer the coverage directly to women without requiring an objecting employer to contract for the coverage itself, constituted an impermissible burden on their religious beliefs. That argument had been rejected by every federal circuit court to hear it, except the U.S. Court of Appeals for the Eighth Circuit.

Justice Sotomayor, joined by Justice Ginsburg, underlined that any modification to the existing policy would need to ensure women “seamless” access to contraception, and emphasized that the employers’ suggestion of a standalone contraceptive-only policy would leave women in limbo and impose the very barriers to access that Congress sought to eliminate.

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

“The Court’s refusal to address the key legal questions at stake means that many American women face continued uncertainty about their access to affordable contraception.

“Refusing women the health care they are guaranteed by law is an act of discrimination. We will continue the fight to ensure that no woman’s boss can impose their religious views on her and control her personal decisions about health and family.

“We are confident that the lower courts will decide – as they overwhelmingly have already – that the contraceptive-coverage benefit complies with the law, and that employers have no right to interfere with their employees’ health care.”  

Today’s order comes two years after Burwell v. Hobby Lobby, in which the Supreme Court ordered the Obama Administration to make the accommodation – previously only applicable to non-profit entities – available to closely held for-profit corporations.

The Center for Reproductive Rights and co-counsel Kramer Levin Naftalis &, Frankel LLP 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 court heard oral arguments in March.

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.