Contraceptive Coverage Under the ACA

1. Contraceptive Coverage Under the ACA How We Got Where We Are Today Leila Abolfazli and Hillary Schneller, National Women’s Law Center LSRJ Training, June 13, 2014

2. Preventive Services Provision Plans must cover without cost-sharing: • Various items or services for adults and children, including immunizations, screenings, and counseling. • But Congress realized there was a gap.

3. What about women’s specific preventive care needs?

5. Why include birth control and education and counseling? • Birth control prevents unintended pregnancy • Allows women to plan and space their pregnancies Improves public health

6. Who Doesn’t Have to Provide? • Churches and other houses of worship employees donot get it • Certain non-profits employees/students do get it (“accommodation”)

7. Who Does Have to Provide? For profit companies

9. Two Lines of Cases • For-profit companies • Two cases at Supreme Court • Non-profit organizations eligible for the “accommodation” • Cases moving through district courts and circuit courts of appeal

10. Cases at the Supreme Court • Hobby Lobby • nationwide chain of arts and crafts stores • over 13,000 employees • Conestoga Wood • wood cabinet and specialty goods manufacturer • nearly 1000 employees

11. Major Issues Before the Court: RFRA • Is a for-profit company a person capable of exercising religion? If yes, then: • Is there a “substantial burden” on religious exercise? If yes, then: • Is there a “compelling interest”?

12. The Government’s Response For-profit corporations are not capable of exercising religion No substantial burden on religious exercise • Too attenuated • Tax alternative Even if there is a substantial burden, the rule is justified by compelling government interests in: • Women’s health • Women’s equality

13. Amicus Strategy • What’s the point? • Who should the Court hear from? • Quality vs. quantity

14. Amicus Arguments • Disrupts principles of corporate law -- corporate law scholars • Employees’ religious freedom -- religious groups • History of using religion to discriminate -- ACLU • Compelling interests, burden on female employees -- NWLC • Impact on LGBT persons & people with HIV -- Lambda Legal • Impact on other health care -- medical and health groups • Establishment Clause -- church-state scholars • Intent of ACA & RFRA -- members of Congress

15. Opinion Pieces In Support of Contraceptive Coverage Requirement

16. Questions from the Justices • Effect on other health care services – vaccines, blood transfusions • Impact on other federal law, including antidiscrimination laws • Burden on employees • How some forms of contraceptives work • Whether there are alternative means by which the government could ensure women’s access to contraceptives – e.g., Title X expansion

17. Outside the Court