National Partnership for Women & Families

In the News

NYT op-ed: Public comment on Zubik gives Obama administration opportunity to address misconceptions about contraceptive coverage rule

In an opinion piece for the New York Times, columnist Linda Greenhouse writes that by asking both sides of Zubik v. Burwell "to go back and work [a solution] out themselves," the Supreme Court may have "given the [Obama] administration the opportunity it needs to lift the verbal fog" surrounding the Affordable Care Act's (ACA) (PL 111-148) contraceptive coverage requirement.

Greenhouse explains that in the lawsuit, "[t]he plaintiffs, nonprofit religious-oriented charities and religious colleges, argue that even notifying the government that they want the opt-out accommodation the administration has offered makes them complicit in the [provision] of birth control," which they personally oppose. The lawsuit is "a consolidation of seven separate cases."

Following the Supreme Court order, Greenhouse writes that the administration sought public comment "on whether there are alternative ways (other than those offered in current regulations) for eligible organizations that object to providing coverage for contraceptive services on religious grounds to obtain an accommodation, while still ensuring that women enrolled in the organizations' health plans have access to seamless coverage of the full range of Food and Drug Administration-approved contraceptives without cost sharing." According to Greenhouse, the public comment period closes on Tuesday, Sept. 20, after which "the administration will provide a status report to the four federal appeals courts to which the justices returned the various cases, proposing a timeline for the next steps."

Greenhouse writes that her own assessment of the comments submitted so far suggests that while most respondents "oppose any version of the mandate," many commentators have used a template provided by Catholics for Choice to express support for "'contraceptive coverage and religious liberty for all people, no matter where they work.'"

Yet Greenhouse explains that while "the comment period is giving ordinary people the chance to mobilize and, for some, to vent," the lawsuit "is neither a numbers game nor an abstract policy dispute." Rather, the case "will be decided within the particular framework of the Religious Freedom Restoration Act [PL 103-141]," Greenhouse writes, noting that the 1993 law permits the federal government to "'substantially burden' the exercise of religion only if the challenged policy is the 'least restrictive means of furthering a compelling governmental interest.'"

Greenhouse notes that while the Supreme Court in its order did "'not decide whether petitioners' religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest,'" the primary "question comes down to the least-restrictive-means test." She writes, "Under the current regulations, the religious employers can simply notify the government that they have religious objections to providing insurance coverage for birth control, in which case the insurer provides the coverage itself without the employer's further involvement."

According to Greenhouse, the administration's request asks "whether there are alternative ways to provide 'seamless coverage' of all approved contraceptives." She explains that "'seamless' has a precise meaning in this context," meaning that "women get their contraceptives covered through their existing insurance plan, without having to seek out a separate insurer or apply for a separate policy." Greenhouse adds, "Metaphorically, seamless indicates that in the eyes of the federal government, birth control is not separate and apart, not an anomalous choice, but an ordinary and essential part of women's lives."

She writes that in her opinion, "[i]t's this deeper meaning of seamless, beyond the technicalities of who has to sign what kind of document, that really separates the two sides." Greenhouse explains that while the plaintiffs cannot "fight [the] facts" that contraception is both normal and a constitutional right, they are arguing that "women shouldn't have contraception handed to them by government policy; they should have to hunt it down in...the health care marketplaces." She writes that in a concurring opinion, Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that the plaintiffs' preferred option for contraceptive coverage -- stand-alone, contraceptive-only plans -- does not "exist in the insurance market," and that requiring such coverage "'would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act.'"

Greenhouse explains that while the contraceptive coverage rules have been "demonized by its opponents as a way for a heavy-handed government to smuggle abortion into the workplace," they are actually "about respecting women as they choose their life course and make crucial decisions about work and family." She concludes, "[T]he court gave the administration a chance to hit reset, a chance it was smart enough to take by asking its opponents finally to put their cards on the table and by inviting ordinary people to tell the world why the case matters" (Greenhouse, New York Times, 9/15).