Challenges to the Contraceptive Coverage Rule: What’s at Stake?

Taken from the May/June 2013 issue of The Women's Health Activist Newsletter.

The lawsuits may be making headlines, but the Administration’s rule for implementing this policy, which includes a narrow exemption for institutions such as houses of worship, is fully consistent with religious freedom law and principles — not to mention that it is a major advance for women’s health and equality. Nonetheless, with this many cases at play, it is almost certain that at least one of the lawsuits will be heard by the Supreme Court, and the outcome could affect far more than the future of the contraceptive coverage rule.

Challenges brought by non-profit organizations

Many of the challenges have been brought by religiously affiliated non-profit organizations, including universities and social service agencies. As we explain below, these cases should fail on the merits because requiring health plans to cover contraception doesn’t harm religious liberty. For the most part, however, courts have dismissed these cases as premature. That’s because the administration put in place a two-part system to respond to objections from religiously affiliated employers.

Part one was a “safe harbor” provision that means the rule won’t be enforced against non-profits with religious objections to contraception until August 1, 2013. Part two is an “accommodation” whereby employees who work for non-profits that hold themselves out as religious can get contraceptive coverage directly from their insurance companies, allowing their employers to opt out of contributing to that part of their insurance. The Obama Administration issued a proposed rule laying out this accommodation on February 1, 2013, and it is due to be finalized before the safe harbor expires in August.

The non-profit challenges never had a leg to stand on, and in light of the accommodation, their cases are even weaker. Nonetheless, some plaintiffs are likely to continue to press their claims.

Challenges brought by for-profit companies

A substantial number of these cases, however, have been filed by for-profit companies, including a mining company in Missouri, a wastewater treatment company in Minnesota, and, most famously, the national craft supply chain store, Hobby Lobby, headquartered in Oklahoma. The lawsuits claim that providing contraceptive coverage “substantially burdens” both the companies’ and their owners’ religious beliefs. All this despite the fact that many of these companies had been covering—and continue to cover—contraceptives in their health insurance.

These cases are moving at a faster clip than the cases brought by non-profits, and are making their way through the courts. Most decisions in the for-profit cases have been preliminary — responding to requests to temporarily block the rule while the litigation proceeds — as opposed to a final decision as to whether the rule violates religious liberty and therefore whether employers need to comply with it and provide coverage in the long run. The courts have been divided in these cases with roughly half temporarily blocking the rule, and the other half declining to do so. The one court to actually reach a final decision dismissed the case altogether, reasoning that it is clear that the contraceptive coverage rule doesn’t violate any religious liberty protections.

Some of these cases have already been appealed to higher courts. Four appellate courts and U.S. Supreme Court Justice Sotomayor (acting as the Circuit Justice for the 10th Circuit) refused to temporarily block the rule, reasoning either that the connection between a business and its employees’ use of birth control is too remote to violate religious liberty protections, or that a for-profit company cannot exercise religion.

In contrast, two other appellate courts, wagering that the plaintiffs might prevail in the end, granted preliminary relief blocking the rule, meaning that it won’t be enforced against those plaintiffs until their entire case has played out. Such splits are likely to continue as the cases wind their way through the appellate courts and up to the U.S. Supreme Court.

Here’s how we see it

While this country ardently embraces the fundamental right of religious freedom, that right is not limitless. The Supreme Court has long recognized that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”In other words, religious liberty protects your right to believe whatever you want, but it does not mean you can impose your religious beliefs on others to their detriment.

What’s more, the contraception rule simply does not “substantially burden” religious exercise, as the plaintiffs claim. Purchasing health insurance that covers a wide range of medical care, including contraceptives, which an employee might decide to use or not use, does not substantially burden the employer’s religious beliefs about contraception.

Health insurance is another form of employee compensation, similar to one’s salary. An employer could not refuse to pay an employee’s salary on the grounds that the employee might use that money to purchase alcohol, or rent an apartment shared with a non-marital partner—even if those actions are contrary to the employer’s beliefs. Similarly, we all pay taxes, and our money might eventually fund a war that we oppose, or contraceptive coverage through programs like Medicaid. But we cannot refuse to pay taxes as a result, and the courts have recognized that a chain of events like this is too attenuated to violate religious freedom.

Fundamentally, an employer is free to believe and say whatever she wants about contraception. She can refuse to use it and try to discourage others from doing so, but she must still comply with the law and give her employees the option to obtain affordable preventive health care through their insurance. Whether an employee makes the independent choice to use her health insurance to obtain contraception is, frankly, none of the boss’s business.

We believe the contraception rule should survive the lawsuits for another reason as well. Even when a law substantially burdens religious exercise, it can stand as long as it furthers a “compelling government interest.” In the past, courts have found that such interests include combating discrimination. The contraceptive coverage rule does just that by promoting women’s health and equality.

Women pay substantially more than men do in out-of-pocket medical expenses, and much of those costs are related to reproductive health care. Studies show that cost is a significant barrier to accessing necessary health care.2 By making contraceptives more affordable — and more accessible — the ACA’s contraceptive coverage rule ensures that more women can get the health care they need, improving both their own health and their future children’s.

Broadly speaking, increasing contraceptive access is an important step towards promoting women’s equality. Contraceptive availability has played a critical role in allowing women to attend college and graduate school by allowing them to decide whether and when to become parents.3 It has also improved women’s ability to advance in the workplace through education or on-the-job training, which has narrowed the wage gap between men and women.4 These are exactly the kinds of interests courts have, in the past, considered to be “compelling.”

Blast from the past

The spate of challenges to the contraception rule is not the first time we’ve seen religious freedom claims invoked to oppose laws designed to advance equality. After passage of the Civil Rights Act of 1964, owners of a restaurant chain in South Carolina argued that the law violated their religious beliefs opposing integration, and that they should be allowed to exclude African-Americans from their restaurant.5

Decades later, religiously affiliated schools argued that they should be allowed to pay men more than women – despite the Equal Pay Act – because the Bible designated men as the heads of households.6 In all of these cases, the courts rejected the argument that religious beliefs can be used to discriminate and to justify violating civil rights and labor laws.

While those examples might sound outmoded, the same reasoning is being revived today — and not just in the context of contraceptive coverage. When the Supreme Court decides one of the contraception rule cases, it will also weigh in on how far the mantle of religious freedom can be used to discriminate and to impose one person’s religious beliefs on others.

If your employer can withhold contraceptive coverage, can he also deny coverage for HIV/AIDS treatment due to religious beliefs about how the disease is transmitted? Can he fire you for becoming pregnant outside of marriage because of his religious opposition to non-marital sex?7 The issue goes beyond the context of employment. Can a hotel refuse to host a gay couple’s wedding because the owners believe the Bible limits marriage to a man and a woman?8 Can a pharmacy refuse to fill prescriptions for fertility drugs because he is opposed to in vitro fertilization? Can a police officer refuse to protect a mosque?9

Like other significant laws that promote equality by prohibiting discrimination, ensuring equal treatment, or rectifying systemic inequalities, the contraception rule is a huge step forward for our society. It ensures that millions of women can decide for themselves, based on their own beliefs, whether and when to use birth control. As the Supreme Court put it in 1961, we live “in a cosmopolitan nation made up of people of almost every conceivable religious preference.”10 It is important that our commitment to religious freedom ensures that no single set of religious beliefs is privileged, imposed on others, or used as a license to discriminate.

Learn more about the contraception rule and lawsuits at:

Jennifer Lee is a staff attorney in the ACLU’s Center for Liberty.

Sarah Lipton-Lubet is a policy counsel in the ACLU’s Washington Legislative Office.

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1. United States v. Lee, 455 U.S. 252, 261 (1982).

2. Liang SY, Grossman D, Phillips KA, et al., “Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006,” Contraception 2011; 83: 528-36.

3. Goldin C and LF Katz, “The Power Of The Pill: Contraceptives And Women's Career And Marriage Decisions,” Journal of Political Economy 2002; 110: 730-770.

4.Bailey MJ, Hershbein B, Miller AR, “The Opt-In Revolution? Contraception and the Gender Gap in Wages,”American Economic Journal 2012: 4(3); 225-54.

5.Newman v. Piggie Park Enter., Inc., 256 F. Supp. 941 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).

6. Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990).

7.See, e.g., Katherine Bindley, “Teri James, Pregnant Woman, Allegedly Fired for Premarital Sex, Sues Christian School,” Huffington Post (Mar. 1, 2013), available at (last visited Mar. 22, 2013).

8. See, e.g., Dave Gram, “Vermont’s Wildflower Inn Settles Gay Marriage Lawsuit with Lesbian Couple,” Associated Press (Mar. 23, 2012), available at (last visited Mar. 22, 2013).

9. See, e.g., David Harper “Judge Rules for Tulsa in Police Captain’s Suit Over Event at Mosque,” Tulsa World (Dec.14, 2012), available at (last visited Mar. 22, 2013).

10. Braunfeld v. Brown, 366 U.S. 599, 606 (1961).