It’s 2020, and Bosses Still Shouldn’t Be Making Employee Birth Control Decisions

On Wednesday, May 6, the Supreme Court heard yet another case debating whether bosses should be able to determine employees’ insurance coverage of birth control. Sound familiar? That’s because we’ve been here before.

Here’s some of our staff in 2014, rallying outside the Supreme Court against expanded employer exemptions in the Hobby Lobby case

Little Sisters of the Poor vs. Pennsylvania pits employers who hold a religious or “sincere moral opposition” to contraception against two states (Pennsylvania and New Jersey) that argue such opposition isn’t enough to deny contraceptive coverage to their employees. The case has made its way through the lower courts and now sits in front of the Supreme Court, where the likes of Brett Kavanaugh will get to help decide whether people he’ll never meet can choose for themselves whether and when they get pregnant.

The lingering question: Why are we still arguing about this? Not from the perspective that one side is right and the other is wrong (our side is obviously right), but from the standpoint that we reached a compromise a long time ago. We’ve already negotiated a way for employers’ freedom of religion and employees’ access to comprehensive health care to coexist. We’ve already maneuvered the heated politics between anti-contraception companies and their workers’ autonomy over their own bodies.

Let us understand what, exactly, this compromise entails. The Affordable Care Act, enacted under the Obama administration, requires that nearly all employers cover birth control in employee health insurance plans. Houses of worship, like churches and synagogues, however, were automatically exempted. After some religious non-profits objected, the exemption was expanded to cover many of them. Finally, 2014’s Hobby Lobby decision added yet another opt-out provision, this time for “closely-held” corporations whose owners had sincere religious objections to contraception. These employers could opt out of the requirement by simply notifying the plan provider that they would not be providing birth control coverage for their employees. At that point, the insurance companies would move to provide free birth control options separate from the employers’ plans.

Six years later, and this would be us again if it weren’t for COVID-19 keeping us all (including the Supreme Court justices) home

Some religious employers still objected to this accommodation, however, and filed another lawsuit: Zubik v. Burwell. That case was punted back to the lower courts by a 4–4 split in the Supreme Court occasioned by the death of Justice Antonin Scalia.

Before the case could make its way back to the Supreme Court, however, the Trump administration in 2017 pre-empted it, using administrative rulemaking to vastly expand the exemptions to allow even more employers to opt out of contraceptive coverage.

Many states, including Pennsylvania, objected to this dramatically increased exemption. So here we are. The exhausting thing about all of this is that even if we win this case, the fight won’t be over. If the Court agrees that the Trump administration overstepped its authority in the way it made the new rules, it won’t stop the administration from trying again. Progress doesn’t come without compromise, and that’s just the way it is. It’d be naïve to think there will ever be a unanimous agreement on this issue, or that anyone will be 100% happy with the final outcome, but you’d think we could at least settle enough to focus on more important issues like, say, the global pandemic we’re currently at war with.

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