Supreme Court’s Non-Ruling Leaves Contraception Access for Religious Nonprofit Employees Uncertain

The US Supreme Court will not rule this session on whether an employer’s religious beliefs should allow it to withhold certain types of contraception from employees. With no decision being issued, the status quo (a mess of contradictory appeals court rulings) remains, pending another challenge.

The justices issued an unsigned order for Zubik v. Burwell on Monday in place of a decision, charging the courts of appeals to work out the discrepancies in their rulings using the briefs and testimony offered during oral arguments at the Supreme Court in March. The lower courts must now attempt to “resolve any outstanding issues between them,” as directed in the order.

Zubik v. Burwell was the lead case challenging the accommodations made by the Obama administration and through the Burwell v. Hobby Lobby decision — accommodations that exempt churches and other houses of worship from providing contraception to employees and allow religious nonprofits to request that the insurer or a third-party administrator provide contraceptive coverage. As it stands, churches and other houses of worship are exempt from the Affordable Care Act’s contraception mandate, while religiously affiliated nonprofit organizations like the ones currently petitioning the Supreme Court can opt out by filling out a form and having either their insurer or a third-party administrator offer and pay for supplemental coverage. The plaintiffs claim that the act of filling out the required form violates their rights under the Religious Freedom Restoration Act.

Catholics for Choice, an advocacy organization based in Washington, DC, that “supports a woman’s moral and legal right to follow her conscience in matters of sexuality and reproductive health,” has opposed the plaintiffs’ suit, filing an amicus brief and arguing in a public memo that “Contrary to what the Catholic hierarchy would have you believe, this case is not just about access to contraception or religious freedom…. If decided in favor of the bishops and their allies, Zubik will … open the possibility for government-sponsored discrimination: the subjugation of women, workers and others without a voice to multi-million dollar industries run by Catholic nonprofits.”

Sara Hutchinson Ratcliffe, domestic program director of Catholics for Choice, told Truthout that a ruling in the plaintiffs’ favor could be “disastrous” for staff and students at Catholic nonprofits, schools and hospitals.

“Since 2011, Catholic bishops and their allies have waged an aggressive lobbying campaign to protect those interests,” Hutchinson Ratcliffe said. “Their ultimate goal is to keep their federal dollars and be allowed to discriminate, too.”

Constitutional law professor David S. Cohen doesn’t foresee the lower courts coming to a satisfactory resolution.

“I find it hard to believe the parties will suddenly be able to work it all out just because the Supreme Court begged them to play nice together,” Cohen told Truthout. “So this will basically result in more fighting between the parties, more lower court decisions and then back to the Supreme Court, though hopefully with a new liberal justice [filling the Antonin Scalia vacancy] so they put this issue to bed once and for all.”

“For now, the Obama administration can still require contraceptive coverage, but the religious nonprofits can continue to assert their religious objection without being fined,” Cohen explained. “The courts will still have to settle which of these seemingly immovable objects has to move.”

In her response to Zubik, Debra L. Ness, the president of the National Partnership for Women and Families, expressed disappointment that the dispute wasn’t settled with a clear, unchallengeable affirmation of the contraception mandate, but remains hopeful thanks to the treatment of similar cases by the lower courts now charged with resolving the outstanding issues.

“While we are disappointed that the US Supreme Court did not find for the government once and for all in Zubik v. Burwell,” Ness said in her statement, “we remain optimistic that the lower courts will rule — quickly, clearly and decisively — for the government in this case, especially since eight out of nine lower courts have already upheld the accommodations in the US Department of Health and Human Services’ regulations.”

Hutchinson Ratcliffe takes issue with the Zubik plaintiffs’ claim that their religious liberty is being infringed upon.

“Conscience and religious liberty rights belong properly to individuals,” she said. “It is clear that the litigation in Hobby Lobby and Zubik is actually about controlling the behavior of people who work for these employers — about imposing one set of moral views on others, even if it disregards the will of individuals who work for those institutions.”

In fact, Hutchinson Ratcliffe’s faith is what motivates her to push back on restrictions to the full slate of reproductive health care.

“Our Catholic faith instructs us to advocate for social justice by working on issues that most affect the poor and marginalized,” she said. “Low-income women, young women and women of color are most likely to be affected by laws that restrict access to birth control and abortion care.”

Despite the seemingly ever-changing landscape altered by courts and legislative bodies, doctors around the country are tasked with providing the best possible evidence-based care for all their patients — including the marginalized groups cited by Hutchinson Ratcliffe. Dr. Nancy Stanwood, board chairperson of Physicians for Reproductive Health, told Truthout that their job is to counsel on contraception as a basic part of health care.

“I am not a lawyer; I am a physician, and I know that contraception is essential preventive care that all women should be able to access without unnecessary hurdles,” Stanwood said. “Contraception not only helps to prevent unintended pregnancy, but it also protects the health and well-being of women and their children. Decisions concerning contraceptive use, like all health care decisions, should be made by a patient in consultation with their health care provider, not by an employer.”

Stanwood contrasted the continued attempt to limit contraceptive access through the courts with groundbreaking legislative action taken this month in the Maryland Statehouse. The Contraceptive Equity Act, signed by Republican Gov. Larry Hogan on May 11, closes some of the Affordable Care Act’s gaps in reproductive health care, beginning in January 2018.

“The Affordable Care Act made great strides in increasing women’s access to contraception, but there are still improvements that can be made,” explained Stanwood. “For example, the new Maryland law will ensure that over-the-counter emergency contraception is covered without additional costs, eliminate preauthorization requirements, allow women to obtain a six-month supply of birth control at a time, and require coverage for male sterilization (only female sterilization is covered by the ACA).”

This first-in-the-country legislation forces insurance companies to recognize the validity of all available contraception in their coverage. The contraception mandate, despite its reputation among groups describing themselves as “pro-life,” did not make all forms of birth control accessible and co-pay-free. Co-pays can be minimal or insurmountable, depending on the plan and income of the patient, at times making the best option essentially unavailable. Emergency contraception like Plan B (newly available over the counter) can cost $60 or more, and many long-acting reversible contraception options like IUDs have required often-denied preauthorization even when they are the best option for the patient. In addition to the benefits cited by Stanwood, the Contraceptive Equity Act eliminates the need to seek reimbursement for over-the-counter options by requiring emergency contraception to be covered at the point of sale.

The American Society for Emergency Contraception (ASEC) is predictably applauding the new law.

“The price of EC [emergency contraception] is simply too high for many women to afford,” ASEC executive director Kelly Cleland said in a statement. “In a moment of crisis, when a woman is concerned about the possibility of pregnancy after unprotected sex or sexual assault, she shouldn’t also need to worry about whether she can afford EC pills. Maryland’s new law will eliminate this critical barrier.”

It remains to be seen if and when the Maryland law will be challenged in the courts. Hutchinson Ratcliffe broke down the faulty grounds on which such challenges rely, saying that “freedom of religion” is too narrowly interpreted, and therefore too broadly applied to the wrong people.

“Religious freedom is an expansive, not restrictive idea,” she said. “It means freedom of religion and freedom from religion. It is about protecting the right of conscience for individuals, while also protecting them from having another’s religious viewpoint imposed upon them. Individuals have this freedom — institutions do not.”

Stanwood cited the fundamental concept of equality for why a final ruling needs to come down on the side of the patients and physicians.

“The high costs and debilitating hurdles created by denying coverage results in a woman potentially not being able to afford the contraception that best fits her needs, even if it’s what she and her health care provider decided is the best option,” Stanwood said. “It creates unequal access to basic health care.”

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