Taken from the September/October 2015 issue of the Women's Health Activist Newsletter.
Now, even for-profit companies can deny contraceptive coverage thanks to last year’s U.S. Supreme Court landmark decision in Burwell v. Hobby Lobby Stores, Inc. For most people, switching jobs in order to work for an employer who doesn’t hold religious objections to contraception isn’t an option. In this article, we describe what you can do, as an employee and consumer, if your employer refuses to cover birth control.
The ACA still requires insurance plans to cover preventive health care services (including birth control) without any out-of-pocket costs. That requirement on insurers has not changed. Additionally, Federal regulations created an exemption to the ACA requirement for houses of worship and other religious institutions — they don’t have to provide birth control under their health insurance plans (since some religions prohibit using birth control). Those exemptions haven’t changed either.
But, the Hobby Lobby decision did change something pretty significant: it expanded the number of employers that can refuse to provide coverage for birth control due to a religious objection. Before Hobby Lobby, religious organizations (like houses of worship) and religiously affiliated nonprofits (like religiously affiliated universities) were the only employers that could get out of the ACA requirement. The 2014 Hobby Lobby decision added certain for-profit companies to that list of potential religious refusers. The current Federal regulations align the for-profit companies with the religiously affiliated nonprofits in getting a special “accommodation” from the government.
Last year’s Hobby Lobby decision had both legal and practical implications. Legally, the Supreme Court held that the corporations in the case could function as “persons” and hold religious beliefs under the Religious Freedom Restoration Act (RFRA). To do so, certain conditions have to be met: the organization must claim that providing employees with coverage for certain health benefits burdens its ability to exercise its religious beliefs, and be a “closely held” corporation. Practically, the Supreme Court decision created a way for some for-profit corporations to refuse to cover birth control in their employer-sponsored health insurance plans. Below, we discuss what the Hobby Lobby decision means for employees of these organizations.
In response to Hobby Lobby, Federal agencies issued several regulations to help ensure that as many employees as possible continue to have access to vital reproductive health care — despite their employer’s potential refusal. These regulations created a system in which some employers that want to refuse contraception benefits are required to notify the U.S. Department of Health and Human Services (HHS) about their religious objections; then HHS works directly with the employer’s insurance company to ensure that its employees can still receive birth control without cost-sharing, as the ACA entitles them to. It’s important to note that the process involving HHS does not apply to houses of worship or auxiliary. Unfortunately, those employers have the ability to deny contraception benefits flat-out, and HHS can’t intervene.
There are three kinds of religious refusers an employee might work for: 1) a house of worship or an auxiliary; 2) a religiously affiliated non-profit, like a university or charitable organization; or 3) a closely held for-profit corporation. The options for obtaining birth control are different for each type of employer, as we describe below.
House of Worship or Auxiliary
Women who work for a house of worship or another organization that functions as a religious institution will not be able to get their birth control covered at all, if the employer refuses to include it in the insurance package. This is because Federal regulations carve out organizations whose sole purpose is to function as a religious institution, and exempt them from the ACA’s birth control mandate.
These women will still receive coverage for other preventive services without cost-sharing, however, such as mammograms and well-woman visits. Some clinics operate on a sliding-scale basis according to the client’s income, and can be a good source for lower-cost prescription birth control. Unfortunately, affordable options may be limited to the non-hormonal birth control methods available without a prescription, like condoms, spermicide, the sponge, or Emergency Contraception.
Religiously Affiliated Non-Profits and Universities
Women who work for a religiously affiliated non-profit organization should still get their birth control covered by their employer-sponsored health insurance without cost sharing — even if the employer wants to refuse it. Examples of this type of organization include religiously affiliated universities or charities.
The government “accommodates” these employers through the process described above: HHS works directly with the employer’s insurance company and the insurance plan, which pays for the birth control coverage rather than the employer doing so. The objecting employer is removed from the equation.
HHS rules don’t require these employers to tell their employees about services that aren’t covered as a result of religious objections. The insurance plans are required to send all enrollees a notice that the insurer itself will provide the birth control benefit. The notice should be sent at the same time as other information about insurance benefits in the plan and should include information about where enrollees can get answers to their questions about birth control benefits.
Closely Held For-Profit Corporations
In July 2015, HHS finalized the regulations applying to closely held for-profit companies. The new rules are the same as those for religiously affiliated non-profits and universities. Examples of closely held for-profits range from manufacturers of wood cabinets and air conditioning products (Conestoga Wood Specialties Corporation and Hercules Industries), to craft stores and produce packing and processing companies (Hobby Lobby and Freshway Foods).
The HHS regulations mean that women who work for these corporations should still have their birth control covered without a co-pay. Right now, it’s difficult to determine how many companies fall within this definition, however, since the definition is based on ownership structure and whether the company’s stocks are publicly traded.
As with religiously affiliated non-profits, these employees should still get their birth control provided through their insurance company without cost-sharing through the same type of government accommodation. And, as with the non-profit rule, the insurance company must send notice of continued coverage to all enrollees when it sends other plan information.
The first thing women should do to find out if their insurance plan covers birth control without costs is to ask. It’s best to start by calling the number on the back of your insurance card and speaking with a representative from the insurance plan.
If that doesn’t work, or the representatives at the insurance company aren’t helpful, there are programs that are specifically focused on helping women navigate the insurance complaint and appeal process and to get birth control despite their employer’s objections. In addition to programs that troubleshoot problems for individual women, NWHN’s Raising Women’s Voices initiative collects personal stories to combine with its own state-level research to advocate for policy change that helps all women. So share your experience with us, please!
For immediate help, NWHN’s ally the National Women’s Law Center (NWLC) operates a program called Cover Her, which provides free information and support via phone or email to women trying to find out if their birth control is covered. The NWLC also has resources to help with insurance appeals if contraception should be covered but isn’t. That program is funded by Bayer HealthCare. Learn more about it at CoverHer.org. In addition, the National Campaign to Prevent Teen and Unplanned Pregnancy operates Bedsider, which also provides free information and support on birth control options and how to obtain affordable contraception, via a hotline and online resources at Bedsider.org.
Ariel Tazkargy, Esq. is the NWHN Program Coordinator and Reproductive Justice Law & Policy Fellow (LSRJ).
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