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 do not 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?
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