contraception coverage

  • March 31, 2014
    Guest Post

    by Frederick Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University Law School

    In the wake of last week’s oral argument of the contraception mandate cases, numerous reporters and bloggers have suggested that the government’s defense of the mandate went badly because (roughly), “Justice Kennedy thinks Hobby Lobby is an abortion case.” The basis for this take is that Justice Kennedy’s questions linked the mandate with abortion rights, to which he has only a limited commitment: Justice Kennedy joined the joint opinion of Planned Parenthood v. Casey (1992) which upheld the “core” of Roe v. Wade (1973), but he subsequently authored the majority opinion in Gonzalez v. Carhart (2007), which upheld a federal statutory ban on late-term abortions despite the absence of health exception. (See also Stenberg v. Carhart (2000), with Kennedy dissenting to the Court’s striking down of a state ban.)

    But there’s another way of seeing Hobby Lobby. Justice Kennedy also asked questions that linked Hobby Lobby’s opposition to the mandate to the burdens a religious exemption from the mandate would impose on its employees, and he has expressed concern in past decisions about religious exemptions that shift the cost of accommodation from those who practice the accommodated religion to those who don’t. For example, Kennedy wrote in the Kiryas Joel that “a religious accommodation demands careful scrutiny to ensure that it does not so burden nonadherents or so discriminate against other religions as to become an establishment” (concurring in the judgment).

    This concern about cost-shifting religious accommodations would presumably be front and center in any case involving religious exemptions that would burden gays and lesbians. Whatever he thinks about abortion rights, there can be no question that Justice Kennedy has long been unequivocally opposed to discrimination against gays and lesbians. See United States v.  Windsor (2013); Hollingsworth v. Perry (2013); Lawrence v. Texas (2003); Romer v. Evans (1996). Indeed, it would appear from Windsor that Justice Kennedy is prepared to hold that state prohibitions and restrictions on same-sex marriage violate the both the Equal Protection and Due Process Clauses of the 14th Amendment.

    Religious Freedom Restoration Act (RFRA) exemptions for Hobby Lobby would open the door to state religious exemptions excusing for-profit businesses from serving same-sex couples or providing certain benefits to gay and lesbian employees. A religious exemption from the contraception mandate for Hobby Lobby would establish a more general principle that for-profit businesses and their owners are entitled to statutory accommodation of their religious beliefs, even when such accommodations impose significant costs on others who do not share those beliefs. Under this principle, not only could an employer claim the right not to provide services for a same-sex wedding on religious grounds, it could also claim the right not to provide mandated employee benefits like health insurance coverage for same-sex spouses, or leave under the Family and Medical Leave Act for gay employees who adopt a child.

  • February 8, 2013
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law

    The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.

    The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.

    With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”

  • January 15, 2013

    by Jeremy Leaming

    Since issuing its landmark Roe v. Wade opinion expanding liberty 40 years ago this month, the debate over abortion has only intensified. Indeed, over the last few years state lawmakers have pushed for even more laws aimed at making it incredibly onerous if not impossible for many women to access the medical procedure.

    So did the high court’s Roe ruling spark a backlash and if so, should supporters of marriage equality gird for a similar reaction if the Supreme Court rules in favor of marriage equality? In a post for Balkinization’s “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries” conference, ACS Board members Linda Greenhouse and Reva Siegel tackle the question and conclude, in part, that a backlash against reproductive rights was gathering before the high court issued its Roe opinion in January 1973.

    Greenhouse, former Supreme Court correspondent for The New York Times, and Siegel, a distinguished professor of law at Yale Law School, write that the message emanating from the “premise of the Roe backlash narrative,” is that “minority claimants should stay away from the courts.”

    But that message, Greenhouse and Siegel write, is not correct in all circumstances:

    Of course, judicial decisions, like Roe and Brown, provoke conflict. The question is whether judicial decisions are likely to provoke more virulent forms of political reaction than legislation that vindicates rights. There was, is, and will be conflict over abortion, same-sex marriage, and indeed, the very meaning of equality. When minorities seek to unsettle the status quo and vindicate rights, whether in legislatures, at the polls, or in the courts, there is likely to be conflict and, if the claimants prevail, possibly backlash too. To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is no. The abortion conflict escalated before the Supreme Court ruled.

    Greenhouse, Seigel and an array of other experts on liberty and equality will participate in panel discussions at the Jan. 18 – 19 conference at UCLA School of Law, which is part of the Constitution in 2020 project. (A schedule and listing of panelists is included at the end of this blog post.) See here for registration information.

    Several of the Conference’s panelists are providing guest posts for Balkinization on topics likely to be discussed in detail or touched upon at the gathering. In another of those posts, the ACLU’s Louise Melling examines the legal challenges to the Affordable Care Act’s requirement that employers’ health care providers offer access to contraceptives. As Melling notes, there are a slew of lawsuits against the contraception policy, and many of them argue that employers’ religious beliefs should trump the ACA’s requirements on contraception.

  • January 8, 2013
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law

    The preventive care provisions of the Affordable Care Act (ACA), which include coverage of women’s reproductive health, took effect on January 1. To date, the thirteen district courts’ and three appeals courts’ decisions involving secular, for-profit companies’ challenges to the ACA’s contraceptive insurance mandate are all over the map. They lack a coherent rationale and reasoning. Instead, the courts should rule consistently that the exemption requested by the plaintiffs violates the Establishment Clause.

    According to the contraceptive coverage mandate, employee group health benefit plans must contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Numerous secular, for-profit companies and their Catholic, Christian or Mennonite owners challenged the mandate as a violation of their constitutional free exercise rights and the statutory protection of the Religious Freedom Restoration Act, which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.”

    Among the plaintiffs in the secular, for-profit lawsuits are Weingartz Supply Company, which sells outdoor power equipment; Hobby Lobby, an arts and crafts store; Mardel, Inc., a bookstore and educational supply company; Hercules Industries, which manufactures and distributes heating, ventilation and air conditioning (HVAC); O’Brien Industrial Holdings, LLC, which mines, processes and distributes refractory and ceramic materials and products; Tyndale House Publishers, a Christian publishing company; American Pulverizer Co., Springfield Iron and Metal, LLC, Hustler Conveyor Co., and City Welding, businesses engaged in scrap metal recycling and manufacturing of scrap-related machines; Korte & Luitjohan Contractors, a construction business; Domino’s Farms, a property management company owned by Thomas Monaghan, the founder of Domino’s Pizza; Sharpe Holdings, Inc., a non-bank holding company including farming, dairy, creamery, and cheese-making; Conestoga Wood Specialties Corp., a cabinet and wood specialties company; Grote Industries, which manufactures vehicle safety systems; Triune Health Groups, which helps injured workers reenter the workplace; and Autocam Industries, which provides automotive parts.

  • November 29, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


    John Breen, Professor of Law at Loyola University Chicago School of Law recently criticized on the Mirror of Justice blog my ACS Issue Brief defending the Affordable Care Act’s contraception mandate, and several of his points require a response.

    1. Professor Breen, like many mandate opponents, refuses to recognize that employers’ free exercise of religion rights are not the only liberties at stake in this conflict. Using the Religious Freedom Restoration Act (RFRA) to exempt employers from the mandate would deny their employees contraceptive coverage without-cost sharing under employer health insurance plans. Employees would be denied this benefit because of religious beliefs they do not share. This is an obvious intrusion on employee liberty in general -- it denies employees covered by an employer health plan their statutory right to no-cost contraception coverage under the ACA -- and an obvious intrusion on their religious liberty in particular -- it imposes the burdens of observing the employer’s religious beliefs on employees who do not share them. The fact that employees would remain free to purchase contraceptives with their own money is no justification for loss of the statutory right to contraceptives without spending their own money.

    Professor Breen maintains that no government action is involved when employers are exempted from the mandate -- indeed, that government action is “entirely absent” when an employer decides “to refrain from paying for contraceptives under its health plan.” But an employer may make this decision to violate the mandate, if at all, only because it is permitted to do so (a) by RFRA as (b) applied by a judge. These are both government actions that, in the event, would result in an intrusion on employee liberty.