Guttmacher Brief Provides Concise Argument Supporting Health Law’s Contraception Policy

March 21, 2014

by Nicholas Alexiou

The Religious Freedom Restoration Act (RFRA) should not be read to provide for-profit employers the extraordinary power to block women workers from access to the most effective contraceptive methods, states an amicus brief lodged with the Supreme Court on behalf of the Guttmacher Institute and Professor Sara Rosenbaum, an expert in law and policy surrounding healthcare concerns.

The friend-of-the-court brief authored by Dawn Johnsen, a distinguished professor at the Indiana University Maurer School of Law (and a member of the ACS Board), and includes former U.S. Solicitor General Walter Dellinger as Counsel of Record explains that the for-profit companies – an arts-and-crafts chain store and a cabinet manufacturer – have “failed to recognize the vastly different effectiveness and cost of different forms of contraception, the substantial degree to which cost determines which contraceptive methods are actually used, the health and social factors that affect a woman’s method of choice, and the resulting consequences for women’s health, family and well-being, and risk of unintended pregnancy and abortion.”

In the brief, Johnsen and Dellinger note that cost-sharing promoted by the Affordable Care Act is critical to allowing every woman to have access to the most effective forms of contraception available. It is claimed that hormonal intrauterine devices (IUD) are “45 times more effective than oral contraceptives and 90 times more effective than male condoms in preventing pregnancy based on typical use” and that “[a]lmost one-third of American women report that they would change their contraceptive method if cost were not an issue.” However, the cost of IUDs is an overwhelming issue for many Americans as implantation can cost “a month’s salary for a woman working full time at minimum wage.”

To rule in favor of the corporations in these cases “would deny to female employees and their insured family members vital access to the full range of contraceptive methods, inflicting financial harm and erecting obstacles to needed medical care.”

The importance of access to affordable contraception cannot be overstated. Johnsen cites a 1999 article from the Center for Disease Control’s weekly journal, Morbidity and Mortality Weekly Report, which stated that the “development of and improved access to methods of family planning” was among “the ten great public health achievements of the 20th century.” The brief also stresses that access to affordable contraception is vital to woman not just for a single moment in their lives, but rather, for vast stretches of time. Citing a previous study from the Guttmacher Institute, Johnsen writes that “[a] typical American woman wishing to have only two children must, on average, spend three decades –– more than three quarters of her reproductive life –– avoiding unintended pregnancy.”

If Hobby Lobby, the arts-and-crafts chain, and Conestoga Wood, the cabinet maker, were to prevail in Court, their religious objections might be satisfied, but the brief points out that a wholly different set of religious objections could arise as women who are denied access to affordable contraception find themselves pregnant and have to choose between a child they are not able to care for or an abortion that they find morally unfathomable.

The importance of affordable contraception is not merely limited to academia or those in the public health community; as the brief states, for the Supreme Court itself has recognized for nearly half a century the importance of women to be free in their use of contraception. In Planned Parenthood of Se. Pa. v. Casey, the Court reaffirmed what it had laid out in 1965 with Griswold v. Connecticut, that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Johnsen and Dellinger also maintain that the Court has already established precedent which should govern these contraception cases. In United States v. Lee, the Court found that a member of the Old Order Amish could not obtain a Free Exercise exemption from Social Security because to grant such an exemption would “‘operate[] to impose the employer’s religious faith on the employees.’”

When oral argument in Conestoga Wood and Hobby Lobby begins, the nine justices of the Supreme Court will not only have reviewed the briefs filed by the various parties in these joined cases, they will have also reviewed the dozens upon dozens of amicus briefs filed supporting one side or the other. While justices are unlikely to be wholly swayed by any single one of these amicus briefs, they would be well served to re-read the brief drafted by Johnsen and Dellinger. In that brief, the Court will find a clear and concise argument as to why the Affordable Care Act’s policy on contraception should be upheld.