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Friday, December 9, 2016

Despite significant existing accommodations for religious organizations, the current challenges to the contraceptive mandate could severely limit access to reproductive care.

On New Year’s Eve, Supreme Court Justice Sonia Sotomayor temporarily blocked enforcement of the Affordable Care Act’s (ACA) contraceptive mandate on a Colorado-based religious organization – Little Sisters for the Poor and Aged – paving the way for the heated debates on women’s health that will ensue in the year ahead.

The contraceptive mandate, which requires employers to provide full coverage of all FDA-approved contraceptive methods, has been a lightning rod since it was first introduced. Religious groups argued it violated their religious liberty, given their religious-based opposition to contraception. In response, President Obama modified the mandate by creating an “exception” that exempts houses of worship altogether, and an “accommodation” that enables organizations that identify as religious (such as Little Sisters) to opt out. Their employees can receive contraceptive coverage from a third-party insurer. These provisions should have put a quick end to the religious objections, but they didn’t.

In order to opt out of the contraceptive mandate, organizations must sign a form that certifies they identify as religious and acknowledges that either their insurance company or a third-party administrator will contact employees directly to provide coverage. Effectively, this provision removes the non-profit from coverage of birth control all together. However, Little Sisters argues that the simple act of signing that form constitutes a substantial burden on their religious liberty.

Here’s the kicker: All of this is moot because Little Sisters’ insurance company is run by the Christian Brothers, which is considered a church and is therefore exempt from adhering to the mandate. So while Little Sisters does have to sign the form for procedural reasons (and to prevent them from being fined for not complying with the mandate), the insurance company can – and likely would – legally refuse to provide the coverage.

While this specific case will have little impact on the employees of Little Sisters (who are out of luck either way), an ultimate ruling in the organization’s favor would provide more fuel to the anti-contraceptive mandate fire already raging across the country.

It also lays the groundwork for two cases already on the Supreme Court docket that will determine the future of contraceptive coverage. In those cases – Hobby Lobby and Conestoga Wood, to be heard on March 25 – the owners of private companies have asserted that providing contraceptive coverage for their employees is a violation of their religious liberty.  The Court will determine if for-profit groups actually have religious liberty, and – if yes – if the contraceptive mandate infringes on that liberty.  That decision will either guarantee contraceptive coverage to millions of women for the foreseeable future, or set a precedent where employers can use their personal religious beliefs as a basis for refusing coverage of a host of health services.

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