No Contraception for You: Religious Groups Still Refuse to Compromise

Burdensome and unworkable is the best description of the plan proposed by a group of religious nonprofit organizations and institutions to interfere with the ability of women in their health plans to access birth control, and undermine the Affordable Care Act's contraceptive coverage mandate.

The religious nonprofits -- charities and schools among them -- have rejected the ACA's contraceptive provision, and sought to undermine it, regardless of how accommodating the Obama administration has been. Their supplemental brief filed on April 12 in the Supreme Court case, Zubik v. Burwell, might, at first glance seem like they are saying "yes" to a compromise as proposed by the justices, but a careful read, as noted by The Economist, reveals the groups are still stubbornly opposed to sound health care policy.

Over and over again in their supplemental brief, the religious nonprofits reveal that they are proposing an outlandish situation. Essentially, the religious nonprofits want family planning coverage carved out of their health care plans, and for women to have to opt into non-existent contraceptive-only plans. The religious non-profits want contraceptive coverage to be "truly separate," meaning "provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication." Such policy, if adopted by the high court, would disrupt the ability of tens of thousands of women to make their own life decisions, forcing them to try and identify and enroll in another health plan or health insurance program, or receive contraceptive care from different providers in different networks from their usual source of care, or pay up-front costs and seek reimbursement later.

This proposal, moreover, would seriously undermine a major aim of the ACA, which is to provide a clear path to quality health care for Americans, including seamless health care coverage for women. The religious groups in Zubik continue to urge the Court to embrace policy that rewrites the rules implementing the ACA's contraceptive coverage, and creates an arduous path to quality care. It would require hundreds of thousands of women to overcome additional hurdles to obtain full health care coverage. No woman should be forced into such a situation.

The Supreme Court should reject the religious non-profits onerous proposal, and uphold the ACA's contraceptive coverage provision, which includes a reasonable way for their employees to access the quality care to which they are entitled while respecting sincerely held beliefs.

As U.S. Solicitor General Donald Verrilli states in his April 12 supplemental brief, the contraceptive coverage provision, with its accommodation for religious objectors, "furthers the compelling interest in ensuring that women covered by every type of health plan receive full and equal health care coverage, including contraceptive coverage. At the same time, it goes to great lengths to separate objecting employers from the provision of contraceptive coverage and to minimize any burden on religious exercise."

Indeed, Verrilli goes on to note, "Religious organizations providing coverage to hundreds of thousands of people have now invoked the accommodation to opt out of the contraceptive requirement." (The accommodation requires religious organizations objecting to the contraceptive coverage to notify their insurer or the government, triggering the insurance providers or third-party providers to exclude contraceptive coverage from group plans but provide separate payments for contraceptive services without cost-sharing requirements.)

The ACA seeks to expand the availability of affordable and quality health insurance for all Americans, in part, by removing barriers to such care. As my organization, the National Health Law Program, states in its amicus brief, in Zubik, "One of the basic functions of government is to ensure the health and well-being of its population." The religious nonprofits in Zubik, however, are bent on upending the intent of the ACA with a proposed policy that would obstruct access to quality health care. As the solicitor general urges, the high court needs to put this matter to rest now. Too many women are needlessly being denied health care they are legally entitled to.