A policy under the Affordable Care Act requires most health insurance plans to cover contraception. It was adopted to improve access to birth control, which is vital to women’s health and equality. Since the beginning, the rule has been subject to multiple lawsuits and policy changes.
New Trump administration regulations let bosses and universities use religion to deny their employees and students access to contraception. But whether a woman uses birth control should be up to her, not her boss or university.
Throughout the policy's many changes, we have been fighting for our neighbors because for-profit corporations and non-profit institutions should not be allowed to use religion as a reason to deny access to contraception. Failure to provide this coverage threatens women's health and equality.
The Original Exemption
From the beginning, houses of worship have been exempt from the general rule that health insurance plans must cover contraception. Houses of worship do not have to (and have never had to) provide their employees insurance coverage for contraception. Employees working for these organizations have to pay for contraception on their own.
Opponents of contraception argued that the exemption should be expanded to include non-profit institutions, including universities, and even for-profit corporations.
We filed comments explaining that an expansion of the exemption would unjustifiably threaten employees' access to vital healthcare. The federal government did not expand the exemption, but announced that it would accommodate religiously affiliated institutions that objected to providing contraception coverage.
A New Accommodation
In 2012, the government announced that it would create an accommodation to the contraception coverage requirement for a broad category of religiously affiliated non-profit institutions, including universities. The accommodation would allow these employers to opt out of providing contraception coverage in their insurance plans; after the employer opted out, the government would work with the employer’s insurance company or plan administrator to ensure that employees received contraceptive coverage without additional charge.
We submitted comments objecting to the creation of the new accommodation because it was unnecessary and threatened women's access to birth control.
In 2013, the government formally proposed a new rule to put the accommodation in place. We again submitted comments expressing our concerns. The government finalized the accommodation later that year. Under the final rule, religiously affiliated non-profits simply had to fill out a form in order to take advantage of the accommodation.
Changes Making It Even Easier For Non-Profit Institutions To Obtain The Accommodation
The accommodation failed to appease many non-profit institutions, including universities, and dozens of these groups challenged it in court. They argue that the mere act of filling out a form—a form relieving them of the need to comply with the policy—itself violates their religious freedom. They want a full exemption that strips their employees and students of contraception coverage altogether. We filed briefs in most of these cases, and in one case, University of Notre Dame v. Price, we represented students whose coverage is at risk.
In one of the challenges, the Supreme Court allowed Wheaton College to obtain the accommodation by notifying the government—rather than its insurance provider or third-party administrator—that it objects to providing coverage. The government then amended the accommodation to reflect this decision. Non-profit institutions may now notify either their insurance company or the government in order to take advantage of the accommodation.
When the government announced the amendment to the accommodation, we filed comments to reiterate our concerns with the accommodation and encouraged the government to make no further concessions.
Expansion Of The Accommodation To Closely Held For-Profit Corporations
Burwell v. Hobby Lobby Stores
The owners of for-profit corporations filed dozens of cases, arguing that they were entitled to an exemption because providing contraception coverage for their employees violated their religious beliefs. One of the cases, Burwell v. Hobby Lobby Stores, ended up at the Supreme Court. We filed over a dozen briefs in those cases. In the Supreme Court, we filed a brief on behalf of nearly 30 religious organizations, arguing that religious freedom has never included the right to deprive other people of their rights.
Unfortunately, the Supreme Court ruled that certain for-profit corporations could refuse to provide otherwise required health benefits—in this case, insurance coverage for contraception—based on their owners’ religious beliefs.
Amending The Accommodation
In August 2014, the government proposed changes to the policy that would address the Hobby Lobby ruling and extend the accommodation to closely held for-profit corporations.
We submitted comments arguing that the accommodation should be limited to the few closely held for-profit corporations whose owners have religious objections, like Hobby Lobby.
The administration finalized this rule in 2015. The rule is a good-faith effort to address the Hobby Lobby ruling, but it extends beyond what was required by the case. Nonetheless, those determined to curtail women’s access to birth control still claim the regulation does not go far enough.
Zubik v. Price
In May 2016, the Supreme Court ruled in Zubik v. Burwell, one of the many challenges to the accommodation brought by religiously affiliated institutions. These institutions want to block their employees and students from receiving birth control coverage from third-party insurance companies, even though the religious groups don’t have to pay for or provide it. We filed a brief in Zubik on behalf of 240 students, faculty, and staff at religiously affiliated universities that discussed the importance of providing contraceptive coverage to those who work or study at these institutions.
In its Zubik ruling, the Supreme Court essentially side-stepped the issue. Instead it sent the issue back down to the lower courts and urged them to consider other possible accommodations. In light of Zubik, the government issued a request for information on whether there are alternative ways to accommodate objecting institutions while still ensuring that women have access to seamless coverage for contraception and we submitted comments. After reviewing 54,000 comments, the Obama administration concluded that there was no feasible alternative. Unfortunately, no resolution has been reached and these women’s access to contraception remains in limbo.
You can learn more about the case on our Zubik v. Price page.
Trump Administration Regulations Create A New, Sweeping Religious Exemption
In May 2017, President Trump signed a "religious freedom" executive order, calling for new regulations that would harm women’s access to birth control and on October 6, the administration issued them. The new regulations create a sweeping religious exemption to the ACA’s contraception coverage benefit: They allow any corporation or university to use religion to deny their employees and students coverage for birth control.
We submitted comments arguing that new regulations discriminate against women and are unconstitutional.
In October 2017, Americans United and the National Women’s Law Center also filed Shiraef v. Hargan, a lawsuit challenging the Trump administration’s contraception coverage rules. We represented women at risk of being denied birth control coverage, including University of Notre Dame students. Barely a week after we filed the case, Notre Dame reversed course on its plan to take advantage of the Trump administration rules, announcing instead that employees and students would continue to have contraceptive coverage. Because these women were promised access to birth control at the time, they decided they didn’t need to continue their lawsuit.
Several states also challenged the Trump administration’s discriminatory rules and courts have blocked them.
Trump Administration Reaches Secret Deal To Grant Sweeping Religious Exemptions
The courts have blocked the Trump administration rules. Yet the Trump administration and the University of Notre Dame negotiated a deal behind closed doors that gets around the courts’ rulings. The agreement, settling University of Notre Dame v. Price, gives the university the right to ignore the Affordable Care Act, which requires the school to provide its employees and students with insurance coverage of contraception. In February 2018 as a result of the agreement, Notre Dame announced that it would stop covering certain forms of contraception for 17,000 students, employees, and their families.
On June 26, 2018, Americans United, the National Women’s Law Center, the Center for Reproductive Rights, and Macey Swanson LLP, challenged the illegal settlement on behalf of a group of Notre Dame students.