Nov 06, 2015

The U.S. Supreme Court should rule against employers demanding an additional exemption from the Affordable Care Act’s (ACA) birth control regulations, Americans United for Separation for Church and State says.

Today, the high court agreed to hear seven cases, including Roman Catholic Archbishop of Washington v. Burwell and Little Sisters of the Poor Home for the Aged v. Burwell, that concern challenges brought by religiously affiliated institutions. Although the plaintiffs are not required to include birth control in the insurance plans that they provide to their employees, they object to their employees receiving that coverage from a third party.   

“No employer – not even a religious one – has a right to stop its employees from accessing health care,” said the Rev. Barry W. Lynn, executive director of Americans United. “If the boss doesn’t want to use contraceptives that is his or her right. But employees should not have their personal medical decisions dictated by their bosses’ religious dogma, especially since the employers have already been relieved of their obligation to cover birth control.”

A regulation implementing the ACA provides that both for-profit corporations and religiously affiliated non-profits that object to offering employee health care plans that include birth control must simply sign a two-page form stating their objection. Or they can send the government a letter stating their objection and providing certain information. Once the form or letter is submitted, the government takes care of the rest in order to make contraceptives available to the objector’s employees. The employer is in no way obligated to endorse birth control, let alone pay for it.

But even that basic form or letter is too much for some employers, which claim that their “religious freedom” is somehow burdened if their employees use birth control – regardless of who foots the bill for it. Americans United says that objection is baseless, and seven of eight federal appeals courts have agreed and rejected such claims.

“The employers in these cases are giving the noble concept of religious freedom a bad name,” Lynn added. “They want to use the Religious Freedom Restoration Act to gain tremendous power for themselves at the expense of untold numbers of women. That is not how it should work in this country and I sincerely hope the Supreme Court agrees.”

Although the cases before the Supreme Court involve non-profit organizations, the challenged accommodation was also made available to for-profit corporations following the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores. If the non-profit employers in these cases win, for-profit corporations such as Hobby Lobby will almost certainly challenge the accommodation too, and their tens of thousands of employees would be left in the lurch as well.

Americans United is heavily involved with this issue, and is the only organization representing an affected woman as an intervenor opposing these dubious religious exercise claims. Americans United has successfully represented women at the University of Notre Dame who sought access to birth control over the university’s claim that it has a “religious freedom” right to deny employees and students access to vital medications; the outcome of these Supreme Court cases could also affect the disposition of the Notre Dame case.

A decision in the case is expected by next June.