Contraceptive Coverage Under the

ACA

How We Got Where We Are Today

LSRJ Training, June 13, 2014

Leila Abolfazli and Hillary Schneller, National Women’s Law Center

Preventive Services Provision

Plans must cover without cost-sharing:OVarious items or services for

adults and children, including immunizations, screenings, and counseling.

OBut Congress realized there was a gap.

What about women’s specific preventive care needs?

Why include birth control and education and counseling?

O Birth control prevents unintended pregnancy

O Allows women to plan and space their pregnancies

Improves public

health

Who Doesn’t Have to Provide?

OChurches and other houses of worshipemployees do not get it

OCertain non-profitsemployees/students do get it (“accommodation”)

Who Does Have to Provide?

For profit companies

Two Lines of CasesO For-profit companies

O Two cases at Supreme Court

O Non-profit organizations eligible for the “accommodation” O Cases moving through district courts

and circuit courts of appeal

Cases at the Supreme Court

OHobby LobbyO nationwide chain of arts and crafts

storesO over 13,000 employees

OConestoga Wood O wood cabinet and specialty goods

manufacturerO nearly 1000 employees

Major Issues Before the Court: RFRA

O Is a for-profit company a person capable of exercising religion?

If yes, then:O Is there a “substantial burden” on

religious exercise?

If yes, then:O Is there a “compelling interest”?

The Government’s Response

For-profit corporations are not capable of exercising religionNo substantial burden on religious exercise

O Too attenuated O Tax alternative

Even if there is a substantial burden, the rule is justified by compelling government interests in:

O Women’s healthO Women’s equality

Amicus StrategyO What’s the point?

O Who should the Court hear from?

O Quality vs. quantity

Amicus ArgumentsO Disrupts principles of corporate law -- corporate law

scholars O Employees’ religious freedom -- religious groups

O History of using religion to discriminate -- ACLU

O Compelling interests, burden on female employees -- NWLC

O Impact on LGBT persons & people with HIV -- Lambda

Legal

O Impact on other health care -- medical and health

groups

O Establishment Clause -- church-state scholars

O Intent of ACA & RFRA -- members of Congress

Opinion Pieces In Support of Contraceptive Coverage

Requirement

Questions from the Justices

O Effect on other health care services – vaccines, blood transfusions

O Impact on other federal law, including antidiscrimination laws

O Burden on employees O How some forms of contraceptives work O Whether there are alternative means by

which the government could ensure women’s access to contraceptives – e.g., Title X expansion

Outside the Court