Contraceptive coverage heads to Supreme Court
By Adam Sonfield
Senior Public Policy Associate
With Congress in a seemingly perpetual state of deadlock, one of the most anticipated actions on federal reproductive health policy will instead be taken by the U.S. Supreme Court this spring. On March 25, 2014, the Supreme Court is slated to hear oral arguments on two challenges to the Affordable Care Act's (ACA) contraceptive coverage guarantee: Sebelius v. Hobby Lobby Stores, in which the 10th Circuit Court of Appeals sided with an Oklahoma-based craft supply chain store, and Conestoga Wood Specialties v. Sebelius, in which the Third Circuit ruled against a Pennsylvania-based furniture manufacturer. A final ruling on the cases is likely to be announced in June.
The federal contraceptive coverage guarantee — part of a broader requirement for private health plans to cover dozens of key preventive care services without out-of-pocket costs for patients — has been met with controversy since the outset. Social conservatives inside and outside of Congress repeatedly have demanded that the requirement be repealed or that it exempt any employer asserting a religious or moral objection to coverage of some or all forms of contraception, regardless of the beliefs and needs of employees and dependents.
The Obama administration has tried to defuse these objections, by crafting an exemption for health plans offered by houses of worship and other religious employers, narrowly defined, and by providing an "accommodation" for religiously affiliated nonprofit organizations, such as some universities, hospitals, and social relief agencies. Employees of those latter organizations still must receive coverage of the full range of contraceptive methods and services without out-of-pocket costs, but that coverage must be provided by the organization's insurance company. The employer, however, does not have to "contract, arrange, pay, or refer" for any contraceptive coverage to which they object on religious grounds.1
Wave of lawsuits emerges
This compromise has satisfied some but not all of the administration's critics, and one result has been a wave of lawsuits; nearly 80 of them are pending as of January 2014.2 More than 30 of those lawsuits have been brought by nonprofit organizations that object to the scope and structure of the accommodation, with some plaintiffs arguing that the requirement to sign a form asserting their objection to contraceptive coverage in order to take advantage of the accommodation is itself a violation of their religious rights.
However, most of the pending lawsuits, including the two before the Supreme Court, have been brought by for-profit companies, which are eligible for neither the exemption nor the accommodation. These cases involve challenges under the First Amendment's protection for religious exercise and under a 1993 federal law called the Religious Freedom Restoration Act. One central question is whether a company can cite these protections: Does it qualify as a "person" that can have religious beliefs and put them into practice?
In the two Supreme Court cases, the businesses are for-profit corporations owned privately by members of a single family, and both the owners and the corporations themselves are plaintiffs. In both cases, the plaintiffs object to coverage of specific contraceptive methods and services: emergency contraceptive pills (including Plan B and ella); copper and hormonal intrauterine devices; and counseling and education about these methods, which they assert can cause an abortion. In part because of these specifics, it is unclear whether any of the other lawsuits might remain relevant even after the Supreme Court issues a ruling. It does not appear that the contraceptive coverage guarantee itself is in danger of being struck down, but a ruling could have a significant effect on how many women will be able to obtain coverage and how expansive that coverage might be.
What is to come?
That question is a meaningful one to the millions of Americans who have already benefited from the coverage protections and from the millions more who will gain these protections going forward. According to a Guttmacher Institute study released in December, the proportion of privately insured U.S. women who paid $0 out of pocket for oral contraceptive pills increased sharply, from 15% in fall 2012 (before the contraceptive coverage guarantee took effect for most women) to 40% in spring 2013 (after the requirement came into force for millions).3
A similar increase, from 23% to 52%, was seen among vaginal ring users with private insurance, although media reports and evidence from insurance companies' own publicly available documents indicate that the federal rules are being interpreted inconsistently for some methods and services.4
The impact of the guarantee can be expected to grow further as it is phased in to additional plans: the number of covered workers enrolled in "grandfathered" plans — existing plans given a temporary reprieve from many of the ACA's new rules — has been declining rapidly, as Congress intended, from 48% in 2012 to 36% in 2013.5
- Department of the Treasury, Department of Labor, Department of Health and Human Services. Coverage of certain preventive services under the Affordable Care Act: final rules. 78 Fed Reg 39870-39899 (July 2, 2013). Accessed at http://1.usa.gov/1fhgqKR.
- American Civil Liberties Union. Challenges to the federal contraceptive coverage rule. Accessed at http://bit.ly/1dyk97Q.
- Finer LB, Sonfield A, Jones RK. Changes in out-of-pocket payments for contraception by privately insured women during implementation of the federal contraceptive coverage requirement. Contraception 2014; 89(2):97-102.
- Sonfield A. Implementing the federal contraceptive coverage guarantee: progress and prospects. Guttmacher Policy Review 2013;16(4):8-12.
- Kaiser Family Foundation and Health Research and Educational Trust. Employer Health Benefits: 2013 Annual Survey. Menlo Park, CA: Kaiser Family Foundation and Chicago: Health Research and Educational Trust; 2013. Accessed at http://bit.ly/1dj0J5H.