Can bosses and colleges deny their employees and students access to birth control coverage? That was the question the U.S. Supreme Court was supposed to answer in the case of Zubik v. Burwell.
The Affordable Care Act (ACA) requires employers and schools that offer health care coverage to make no-copay birth control available as part of that coverage. But some anti-birth-control nonprofits and religiously affiliated colleges claimed that having to complete a simple one-page form or send a letter certifying their religious objection to birth control “substantially burdens” their beliefs and shouldn’t be required. (The form or letter triggers a work-around that makes birth control coverage available to their employees and students anyway.)
These groups’ efforts piggybacked on the devastating Burwell v. Hobby Lobby decision, which let businesses owned by religious families deny birth control coverage to their employees. In an unusual move, the Supreme Court sent Zubik v. Burwell back to the lower courts on May 16, 2016, rather than deciding the case itself.
Rather than complete a one-page form or write a letter informing the government of its objection to covering birth control (which triggers the workaround), the bosses and colleges that brought Zubik proposed an outrageous “alternative” — one that is much more burdensome to everyone else: reworking the entire health insurance system by having insurance companies create totally new, separate health plans that would cover contraception only. (The current, time-tested ACA benefit, by the way, works: It’s made birth control affordable and available to more than 55 million women and saved them an estimated $1.4 billion in birth control pills alone since the benefit went into effect.)
Given that these kinds of birth-control-only plans don’t exist, and health insurers have no intentions of offering them, the idea is simply unworkable. Women would have to pay for them out of pocket — violating the “affordable” part of the Affordable Care Act. And not only that: Women would have to make sure their regular health care providers accepted these plans, or try to find health care providers who did. Talk about a substantial burden!
At the time of the would-be decision, the Supreme Court was operating without a ninth justice because Republicans in the U.S. Senate refused to do their job and vote on President Obama’s nominee for the open position. The eight-member Court kicked the case back down to lower courts. It told these courts to determine if, in fact, another compromise exists that would let students and employees continue to get seamless, copay-free birth control coverage, while, in the words of the Court, “accommodat[ing] petitioners’ religious exercise.”
The decision to send the case back to lower courts means many women’s access to no-copay birth control is still at risk. The good news is that, for now, women who work at religiously affiliated hospitals, colleges, universities, social service programs, and other nonprofits still have access to the birth control coverage they need.
That’s as it should be. Bosses and colleges shouldn’t get to decide whether their employees and students have access to birth control. That’s a decision women should get to make themselves.