Filing a Form Shouldn’t Block Contraception Access
Ruling in favor of Zubik could pave the way to discrimination, and that’s a road I don’t want to go down.
Yesterday morning, as I hurried into my very first Supreme Court oral arguments for the case Zubik v. Burwell, I had a flashback.
Nearly two years to the day, I was standing in front of the Supreme Court of the United States, sharing my abortion story. I joined reproductive health care providers, scholars, and activists who spoke to a lively rally during the Burwell v. Hobby Lobby oral arguments. We built an argument about why access to contraception matters, including for those who work for companies that are closely-held by religious owners.
And yet, we’re back.
I arrived at four o’clock in the morning to see the Supreme Court Justices offer thoughtful questions about whether or not it is an undue burden for religiously affiliated nonprofit organizations to fill out a form or send a letter and continue to deny their employees’ health insurance access to contraception. The Patient Protection and Affordable Care Act, which also celebrated its sixth anniversary yesterday, requires that contraception be covered as part of eight essential preventive health services for women. However, the seven petitioners believe these diminutive requirements of notifying the government of their objections creates a burden under the Religious Freedom Restoration Act. They feel the government is “hijacking” their process by allowing employees to access the contraception through a third party like the insurance company, albeit through a separate avenue with their health insurance plan and through funds not paid for by the nonprofit.
This month, we’ve been hearing a lot of Supreme Court talk about what constitutes a burden. Zubik v. Burwell is being heard two weeks after the Whole Woman’s Health v. Hellerstedt case where the Court was debating whether people seeking abortions in Texas experienced an undue burden when being forced to make multiple trips, hundreds of miles for an abortion. At the National Network of Abortion Funds and our member organizations, people seeking an abortion reach out daily because they need funding and transportation support for their abortions. They often don’t have insurance, or their insurance doesn’t cover abortions or birth control. We hear from thousands of parents, college students, immigrants, and low-income workers — people who are facing all kinds of undue burdens in daily life and the very same people will be impacted by the decision of this case. I can’t help but wonder why it’s an undue burden for an employer to mail a form, but people who need an abortion are expected to miss work for multiple appointments and travel hundreds of miles for an abortion. The scales of justice are not balanced.
When it comes to birth control, insurance, and religious freedom, there are too many misconceptions to count. There are already laws like the Civil Rights Act in place to ensure employees and employers alike are able to receive accommodations to allow them to practice their religion based on their personal beliefs. Religious institutions like churches, synagogues, and mosques are already exempt from providing contraception on their insurance plans, if they so choose. However, these assurances of freedom should not extend to denying essential healthcare from a person with different beliefs. So far, eight out of nine of the lower courts have agreed that the employers do not have the right to deny access to contraception. And no law should cost a person their dignity, as we saw in North Carolina last night when Governor McCrory repealed all local anti-discrimination protections for LGBT people in less than a day. The case’s petitioners believe that their employees should simply receive contraception by purchasing a second, separate, insurance plan or by visiting a Title X funded clinic. One of the petitioners, a national chain of nursing homes, employs thousands of low-wage workers, many of whom are people of reproductive age and need contraception in their health insurance. These obstacles put several financial and physical obstacles in the way, which disproportionately impact people of color and low-income people. Not to mention, Title X funded clinics are being defunded across the country, which has several serious and well-studied consequences.
A recent Texas study showed that denying access to contraception and defunding reproductive health centers led to an increase in unintended pregnancies and births. Justice Sonia Sotomayor argued this point, explaining, “We are worried because there are some women who don’t adhere to that particular religious tenant, and who have we perceive the government has determined, have a real need for contraceptives.” Additionally, not everyone practices their religion in the same way. We know that almost 80 percent of people having abortions identify as religiously affiliated and nearly everyone having sex has used at least one form of contraception, including a majority of religious people.
For people of all walks of life and religious beliefs, contraception is a normal and necessary part of health and well being. Access to the full spectrum of reproductive healthcare is essential for all people to be able to make the best decisions for their lives, and this case has bearing on whether such access is a reality. A wrong decision in this case has the impact to harm millions of people of color, women, LGBT people, and their families. It would allow religiously identified nonprofits, colleges and businesses to refuse to comply with laws they don’t like. It’s a slippery slope. A wrong decision will pave the way to legal discrimination, and that’s a road I don’t want to go down.