Faculty Commentary

Birth control and the Affordable Care Act (and, yes, the pope)

Birth Control

With much of the East Coast enthralled by the visit of Pope Francis, let’s review an issue that pits – perhaps – the pontiff’s enduring commitment to the disenfranchised against his religious beliefs:

More than 50 years ago, the U.S. Supreme Court ruled in the landmark case Griswold v Connecticut that women have a constitutional right to birth control. Even with the right granted by the court, many women have had a hard time accessing contraception. Lack of health insurance, limits to coverage, and hefty co-pays have been obstacles keeping women from fully enjoying this right. Things have gotten better, however, since enactment of the Affordable Care Act (ACA), which requires free preventive health-care services for women. The law mandates that health insurers offer an employee and her dependents the full range of FDA-approved contraceptives – including the more costly injectables and IUDs – without any cost-sharing such as a co-pay.

Access to reproductive healthcare is critical in allowing women to lead full lives. A comprehensive review of more than 60 research studies by the Guttmacher Institute confirms what many women know: access to contraception significantly contributes to their educational attainment, economic stability, access to higher paying jobs, and mental health and wellbeing – for themselves as well as their children. As the Supreme Court said in another landmark opinion – 1992’s Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, Governor of Pennsylvania, et al. – “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

This coverage has not come without controversy. Some employers sued the Obama administration, claiming that the ACA mandate violates their religious beliefs because some forms of contraception that they would be required to pay for are, in their opinion, forms of abortion (an assertion contradicted by the science of how contraceptives work to prevent pregnancy). Although for-profit companies generally are not entitled to assert religious beliefs to avoid their legal responsibility, the Supreme Court ruled last year that the retailer Hobby Lobby did not have to follow the contraceptive mandate. The Obama administration recently issued new rules clarifying that “closely held” for-profit corporations (defined as a firm where more than 50 percent of the business is owned by up to five individuals) like Hobby Lobby and religiously affiliated non-profits are permitted to opt-out of the mandate by filing a self-certification indicating their desire for accommodation of their religious beliefs. In these cases, an insurance plan offered by the employer must still provide the full range of contraceptive coverage but the employer doesn’t have to pay for it.

A new round of lawsuits has been filed by religiously affiliated non-profits arguing that even asking for an accommodation is a substantial burden on their exercise of religion. Seven of the nation’s eight Circuit Courts of Appeal have ruled against the organizations; the circuit courts were hard-pressed to see how simply asking for an accommodation, which involves little more than signing and mailing a form, is a “substantial burden” to the exercise of religion. Last week, however, the Eighth Circuit Court became the first federal appellate court to disagree and ruled for a religiously affiliated nonprofit. The issue may end up before the U.S. Supreme Court. On Wednesday, Pope Francis visited the Little Sisters of the Poor, a group of nuns who are petitioning the court to take the case. The unscheduled visit was interpreted as a sign of support.

Two years ago, a column in the Journal of the American Medical Association noted that exempting employers from the requirement that they provide their female employees with reproductive health services would be “at odds with evidence-based preventive care, inconsistent with actual patterns of contraceptive use among women who are religious and a sectarian incursion into private health care that is without parallel in the U.S. health-care system.” It is also short-sighted. If the goal of religiously affiliated employers is to prevent abortions, they would do better supporting the ACA’s mandate to provide contraceptive coverage. A recent study demonstrated that access to effective contraceptive methods at no cost significantly decreased abortions and teenage pregnancies

In reality, only a small number of employers are expected to seek authority to deny contraceptive coverage to their employees. The vast majority of employers should include in their insurance coverage all of the FDA-approved contraceptive methods and women should know, and assert, their right to access contraception without paying any related costs. The lives of women and children will be better for it.

This article originally appeared on Philly.com

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