It’s About Women’s Health and Rights

Misleading news stories over the past week exaggerated the scope of U.S. Supreme Court Justice Sonia Sotomayor’s recent action. What the Court decides this spring, however, may affect millions of women.

An advocate for LGBTQ rights holds a pride flag in front of the U.S. Supreme Court building in Washington, D.C., June 2020. (Getty/Chip Somodevilla)
An advocate for LGBTQ rights holds a pride flag in front of the U.S. Supreme Court building in Washington, D.C., June 2020. (Getty/Chip Somodevilla)

Court cases related to a provision in the Affordable Care Act, or ACA, to provide preventive health services generated a great deal of media coverage over the past couple weeks—much of it misleading. Newspaper headlines and television pundits around the country may have inadvertently led many Americans to believe that the court and justices’ actions dealt a severe setback to providing contraception without copayments to women insured through the ACA. While the cases assert that employers’ religious freedom is under fire, it is instead a woman’s right to make her own health care decisions and her religious liberty that are under attack.

According to a review by an independent panel at the Institute of Medicine, providing women with contraception and other preventive services without requiring copayments is cost effective and allows women to access medically sound care under the ACA. Because nearly half of all pregnancies in the United States are unintended—and these pregnancies can lead to poor health outcomes for women and children—measures to prevent unintended pregnancies, such as contraception, were included in the ACA-covered services. In addition, data from multiple studies show that women who cannot afford preventive services—such as mammograms, cervical cancer screenings, and contraception—due to high copayments or out-of-pocket costs often avoid accessing these life-saving services.

Just more than 10 years ago, unintended pregnancies led to an estimated $5 billion in direct medical costs. In addition, until the contraception coverage under the ACA began in August 2012, most women with health insurance were paying between $30 and $50 per month for short-term birth-control methods, and the most effective long-term methods cost thousands of dollars, prohibiting many women from being able to access them. Under the ACA, however, more than 27 million women are currently able to access contraception without a copayment. Millions more women are now accessing preventive care and are able to plan their pregnancies.

The facts regarding the case that made headlines over the past two weeks are straightforward. The plaintiffs in Little Sisters of the Poor Home for the Aged, et al. v. Sebelius, et al. are not required to provide contraception to their employees due to an accommodation in the ACA for religiously affiliated nonprofits. This accommodation was developed specifically for organizations similar to Little Sisters of the Poor Home for the Aged and simply requires them to sign a form stating that they have religious objections to providing contraception to their employees. In this case, the insurance company and third-party administrator are also not required to provide contraception without a copayment because they have a religious affiliation. There is little to no merit to this case given these accommodations. Their employees are ultimately the people who are affected by these decisions.

It is not clear how many women of reproductive age are employed by the nonprofits in this case and could be deleteriously affected. And while policies or accommodations that prevent any woman from accessing contraception without a copayment are unfair and unjust, the number of women who work at these entities is probably not too large. Thousands and potentially millions of women, however, may be affected by the decisions of the other cases recently in the news, Hobby Lobby Stores, Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius, which the Supreme Court will hear on March 25.

These cases involve for-profit companies and include substantially larger entities that do not have access to the accommodations that the religiously affiliated nonprofits have. What’s more, they raise the key issue in nearly all of the court cases challenging the contraception provision without copayments: people’s rights and religious liberty under the Religious Freedom and Restoration Act, or RFRA. Congress passed RFRA 20 years ago to prevent other laws and court decisions from infringing on the free exercise of religion in the United States.

Given the accommodations for the plaintiffs in the nonprofit cases, there is obviously no substantial burden to the plaintiffs’ religious liberty. In the case of the for-profit entities, what the Supreme Court will partially be deciding this spring is whether for-profit organizations have religious rights under RFRA and whether secular employers’ religious liberties outweigh the religious liberty of its employees.

Twenty-seven million women who are currently accessing cost-effective, medically sound preventive health care could bear the brunt of a court decision to eliminate these benefits. Employers should not be able to insert themselves into a woman’s decision to access contraceptive care. It is a health care choice that should only be made by a woman and her health care provider, not by her boss or anyone else.

Donna J. Barry is the Director of the Women’s Health and Rights Program at the Center for American Progress.

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Donna Barry

Director, Women\'s Health and Rights Program