Finding Their Voices

Women Harmed By Limits On Birth Control Haven't Had Their Say In Court - Until Now

In the ongoing dispute over access to birth control, one thing has often been missing: the voices of women who stand to lose the most if contraceptives become harder to get.

Americans United is working to change that.

AU’s Legal Department on Feb. 17 filed a brief before the U.S. Supreme Court in a case that could further restrict Americans’ access to birth control. AU’s friend-of-the-court brief was filed on behalf of almost 250 college and university students and staff who could lose access to the medical care they need. It’s the only brief pending before the court on behalf of women who might bear the brunt of this ruling.

The legal tussle, Zubik v. Burwell, is one of seven consolidated cases before the high court. At issue are the Obama administration’s regulations im­ple­ment­­ing the Affordable Care Act, sometimes called “Obamacare.”

The administration has required that most insurance plans include coverage for birth control. Houses of worship are exempt from the mandate, and certain for-profit businesses won the right to exclude birth control last year in the case Hobby Lobby Stores v. Burwell.

Businesses with religious objections and religious colleges and non-profit groups, however, are still required to allow employees who want birth control to access it through health-care plans.                  

Under the terms of a compromise crafted by the administration, the religious objectors don’t have to pay for or otherwise provide coverage for contraceptives. They simply have to inform their health insurers or plan administrators that they don’t want to include it by filling out a short form or providing written notification of their objection to the government. At that point, the feds arrange for a third-party insurer or administrator to provide contraceptive access—at no cost to the religious object­ors.

Remarkably, even this compromise has been rejected by some religious non-profits, primarily Roman Catholic and evangelical Protestant groups. They argue that the mere act of providing written notice of their objections makes them “complicit” in the provision of birth-control coverage by third parties. They insist that this simple act violates their religious freedom, citing the Religious Freedom Restoration Act (RFRA), a 1993 federal law that was designed to protect the rights of minority religious groups from government overreach.

 In recent years, the Supreme Court has interpreted RFRA in ways that its original backers never envisioned. Americans United and other critics say the law was designed to protect individual religious freedom, such as the right of a person to wear non-intrusive religious garb at work. The law, they say, was never intended to give religious entities a weapon to deny the rights of others.

Eight different federal appellate courts have sided with the Obama administration, ruling that the compromise doesn’t violate religious freedom. One federal appeals court, the 8th U.S. Circuit Court of Appeals, however, ruled the other way. Several of these cases are now pending before the Supreme Court, which held oral arguments on the Zubik case last month.

Americans United is the only organization representing affected women in these matters. In January of 2014, AU’s attorneys successfully intervened on behalf of a student after the University of Notre Dame announced that it objected to requesting the accommodation that would enable its students and staff to receive contraceptive coverage from third parties.

As the Notre Dame case and others moved forward, AU realized that the often airy and legalistic debate was lacking a human element. Thus, the organization decided to file a brief before the Supreme Court on behalf of women who might lose coverage for contraceptives if the legal challenges succeed.

AU makes the point that in the modern era, use of contraceptives by American women is nearly universal. The Guttmacher Institute, a New York-based group that conducts research on human sexuality, reported recently, “Virtually all American women aged 15-44 who are sexually experienced have at some point used a contraceptive method other than natural family planning (99%). This is also true of Catholic women, 98% of whom have used a contraceptive method other than natural family planning.”

AU’s brief, which was written by Senior Litigation Counsel Gregory M. Lipper, AU Legal Director Richard B. Katskee and Madison Fellow Natacha Y. Lam, gives some of these women the chance to speak to the court. The brief includes personal testimonies from women who talk frankly about how crucial access to contraception is in their lives. The women discuss how it has enabled them to prevent unintended pregnancies, focus on their educational and professional goals and treat serious medical conditions.

“In the future, I would like to have a family,” one woman says in the brief.  “But right now, I am working towards a degree and I am not in a financial position to raise a child. I owe money for my undergraduate, graduate, and law-school degrees. Every cent I save counts. Contraception enables me to focus on my degree and puts me in control of my own reproductive health.”

Another woman noted, “Access to low-cost contraception has allowed me to feel like I have control over both my body and my future.”

Others discuss the use of contraceptives to treat serious medical conditions.

“I have dysmenorrhea, a condition that makes menstruation debilitatingly painful,” one woman says in the brief. “Before I started taking oral contraceptives, the pain from [the condition] caused me to miss up to two days of school per month. The pain could not be reduced by over-the-counter or prescription painkillers.”

The women (and a few men, whose family members are covered by their university health plans) are drawn from several religious schools: Benjamin N. Cardozo School of Law, DePaul University, Fordham University, Fordham University School of Law, Georgetown University, Georgetown University Law Center, Loyola Marymount University (Los Angeles), Loyola University (New Orleans), Saint Louis University School of Law, University of Detroit Mercy School of Law and the University of Notre Dame.

The students, faculty and staff who joined the brief range in age from 18 to 53. Some of the students are undergraduates, while others are pursuing graduate degrees.

As AU’s brief notes, this is not an academic issue to the women involved.

“Tens of millions of women nationwide depend on contraceptive coverage to prevent unintended pregnancies, treat serious medical problems, and ameliorate the resulting educational, professional, and medical harms,” observes the brief. “Many of these women work or study at religiously affiliated institutions. Whatever views petitioners or others may hold about contraception, they have no right to veto the government’s provision of benefits and thereby to strip these students, faculty, and staff of access to coverage for critical preventive care.”

What’s often overlooked in this debate is that many of the staff and students attending religious institutions either are not members of those churches or choose not to abide by the hierarchy’s rigid rules that forbid the use of contraceptives.

The AU brief brings many of these facts to bear in the hopes that the high court will consider the practical effects of a ruling that could make access to birth control more difficult for millions of women.

In a statement to the media, AU Executive Director Barry W. Lynn noted that the accommodation given to non-profits is more than sufficient.

“Religious colleges, nursing homes and other entities have been given a generous accommodation,” said Lynn. “They don’t have to pay for birth control. All they have to do is tolerate the fact that some of their students and staff might want to use it.”

The AU brief is getting attention. RH Reality Check, a popular site that deals with reproductive rights, highlighted the brief in a story in late February, and National Public Radio picked it up as well.

Noted AU attorney Lipper in a media statement, “The voices of affected women have been conspicuously absent from most of the lawsuits seeking to block contraceptive coverage. As our brief makes clear, women will suffer concrete and profound harms if religious objectors succeed in blocking their access to vital healthcare.”