Birth Control

It's 'Access' to Birth Control Versus Employer Beliefs Again at the Supreme Court

The Obamacare contraception mandate continues to cause legal trouble.

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Contraception, conscience rights, and the Affordable Care Act (ACA) are at the center of another case before the U.S. Supreme Court. On Wednesday, the court will hear oral arguments (via teleconference) in a case concerning whether health insurance coverage must include birth control at no up-front cost to employees.

In 2014, the Court ruled in Burwell v. Hobby Lobby that the ACA's requirement that all closely-held private companies offer contraception-covering insurance plans violated the 1993 Religious Freedom Restoration Act. In 2016, the Court sent seven consolidated cases concerning Obamacare and birth control back to lower courts.

This week, justices will consider Trump v. Pennsylvania, in which Pennsylvania's attorney general is challenging the Trump administration's 2017 declaration on the subject. That order expanded the range of companies that could object to providing such insurance and removed a mandate that insurance companies pick up the tab when employers wouldn't.

Trump v. Pennsylvania is also consolidated with a similar case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.

At issue at this week's hearing: Did the administration have the authority to expand the contraception mandate's conscience exemption in the first place—and, if so, did its decision not to allow public comments on an initial draft of the rules render the final rules invalid? The Court will also consider whether the U.S. Court of Appeals for the 3rd Circuit was right to affirm a lower court's ruling blocking implementation of the administration's rule.

For more on the particular legal questions involved, see this argument preview from SCOTUSBlog's Amy Howe.

Those in opposition to the conscience rights expansion are once again framing this as a matter of denying women access to birth control. But we shouldn't define access to mean covered-under-an-employer-sponsored-health-care-plan. There are much better ways to expand access—like freeing the pill from prescription-only status, getting rid of restrictions on mail-order pills, and backing community-based health solutions—than forcing the minority of companies that object to covering contraception to do so. Over-the-counter contraception sales and other solutions centered on free markets, technological advances, or localized needs have the ability to expand access to birth control for all who need it, not just those who already have a job and health care benefits.

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  1. Access is not denied. And why should your coworkers pay for it?

    1. If I have to pay for your birth control, then I should be able to…

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      2. Outstanding! You win the internet today.

    2. I’m probably not alone in that I’ve had coworkers whose birth control I would be very happy to pay for, in hopes they never reproduce. But government usually doesn’t have to intervene in cases like that.

    3. Why should they pay for your Viagra so you can get a hard on? Many, though not all do.

      1. Viagra returns proper function to a part of the body.

        Like it or not, birth control does not do that. It actively prevents proper function to a part of the body.

        The closest comparison to viagra for women would be treatments for arousal or dryness issues, not pills to prevent the natural process of reproduction to be stopped.

        1. Actually, birth control pills ARE sometimes used to treat irregular periods in women.

          While viagra is often prescribed to prevent peripheral neuropathy after chemotherapy. But my insurance still wouldn’t cover it, so here I am with fingers that feel like I’m wearing gloves all the time.

    4. Exactly. This isn’t exactly what most think of when someone says “medicine.” ObamaCare, like all coercive government programs, wants to make you fund even that you disagree violently with. This is Big Government in its full ugliness.

  2. Forget the Constitution, a basic tenet of being alive is that nobody is entitled to free shit. A right to free shit implies an obligation on someone else’s part to supply the free shit. If you have a complaint about somebody not giving you your free shit, you need to take that up with God because no man is born into such bondage. Now fuck off, slaver. And it would be the greatest day in my life if the Supremes would incorporate that into the decision. Fuck Off v Slaver would have to be one of the most-cited cases in history.

    1. Nobody is asking for free stuff, it is part of your insurance policy. You are acting like women want something special just because they have reproductive system. Well those RS are part of their body and as such part of their healthcare.

      1. Perhaps women who have those concerns might inquire, at the time they interview for a job, if the insurance the company provides meets their needs? Or is that expecting too much?

        1. That’s blaming the victim. Sometimes a girl goes out, has a bit too much to drink, and ends up with an unexpected job the next day. It is called female empowerment and it is the employer’s responsibility to not take advantage of her when she’s especially drunk on empowerment, even if the employer was also drunk at the time.

      2. “Nobody is asking for free stuff, it is part of your insurance policy.”

        The price of which is legally prohibited from including the cost of the free stuff, not having to pay for stuff being the definition of it being free. So, yeah, it’s free stuff.

        Their reproductive systems are part of their body. So are their kidneys, which aren’t the subject of any free stuff mandate.

      3. It is not part of your insurance policy. It is part of the employer’s insurance policy.

        They are demanding that the employer be forced to change the policy rather than, you know, finding a likeminded employer or paying out of pocket.

        No, no matter how much people scream about it, I will not believe that the expenses for condoms, diaphragms, and a yearly visit to the doctor for a routine prescription exam (which would included in a normal gyno exam anyway) are ruinous.

        Not even when you factor in having to purchase feminine hygiene products or the extra cost for your razor being pink.

      4. “Well those RS are part of their body and as such part of their healthcare.”

        If their system is capable of producing children, then one cannot argue there is an issue with proper function.

      5. There’s nothing wrong with their reproductive system. It works as designed. What they want is for it NOT to work as designed. Exactly why should all insurance buyers be forced to pay for that? Nothing is broke. There’s nothing to fix. If they don’t like the way it works, let them pay to change it.

  3. ” Did the administration have the authority to expand the contraception mandate’s conscience exemption in the first place”

    I can’t see how the administration couldn’t have that authority: The ACA didn’t actually mention contraception, or have a “contraceptive mandate”. It just mandated coverage of “preventative care”.

    1. This is purely the Democrats abusing the judiciary to keep a policy they implemented in an irregular fashion by executive fiat by saying that the successor executive’s attempt to change the policy did not follow the proper procedure.

      There are several issues intertwined here. The Congress ceding authority to define the law to the executive. The government illicitly claiming authority to dictate specific terms of compensation in employment contracts nationwide based on what the party in the White House considered moral. The unelected judiciary potentially dictating to the executive what policy should be.

  4. There are much better ways to expand access—like freeing the pill from prescription-only status, getting rid of restrictions on mail-order pills, and backing community-based health solutions—than forcing the minority of companies that object to covering contraception to do so.

    Exactly.

    1. But those do not give progressives the thrill of being able to impose th4or will and morality on the entire population.

  5. I agree that you probably get better access with making more birth control over the counter and giving more option to get it. I don’t see anybody moving that way, I just see people trying to take away access. So either leave it in the insurance or get it over the counter. Either is acceptable to me.
    I also like to take a moment to point out the hypocrisy here. I see many religious families with a small number of well spaced children talking about opposition to birth control.

    1. “I see many religious families with a small number of well spaced children talking about opposition to birth control.”

      Wow. You mean they aren’t even a ridiculous Irish Catholic stereotype and yet they have the NERVE to have Catholic beliefs? Well, they are just asking to be the object of your sneering derision.

      1. What I am talking about here is religious leaders who will talk about opposition to artificial birth control but will not enforce those beliefs in their congregation, because if they did they would have no congregations. Its the Catholic version of don’t ask, don’t tell.

        1. enforce those beliefs in their congregation

          How many thuggish NYC cops does the Pope have?

      2. “You mean they aren’t even a ridiculous Irish Catholic stereotype and yet they have the NERVE to have Catholic beliefs?”

        It depends. When they mean opposition to birth control for themselves, then fine. They’re welcome to a string of Irish twins until mom’s cervix resembles a blown truck tire, and of course they’re welcome to freely speak about their views.

        However, when they mean opposition to birth control for the wider society and enforced by a government that is supposed to be secular (former Senator Santorum’s views), then absolutely not. Sneering derision is far more kind than what they would deserve in that case. There are reasons the internet named a particularly unpleasant mixture of bodily fluids after the former senator…

    2. ” I don’t see anybody moving that way, I just see people trying to take away access. ”

      Well, it isn’t our fault you’ve got your eyes tightly shut, now, is it?

    3. Which religion are those families following? Christian thought is very diverse. So maybe they’re not hypocrites. Also maybe they are ok with it within their own lives but don’t want the government intruding on others religious beliefs because of principle positions they’ve taken; I don’t own guns but I don’t want to see the government infringing on my fellow Americans right and that doesn’t make me a hypocrite.

    4. How are they taking away access, the can take out their wallet and pay for it, all they need is a prescription (which is another argument as to why they need a prescription that I won’t get into). That is not access just as Obama care is not health care but mandated insurance. Not my fault they do not have the money (all though even that is debatable, last I heard the pill is fairly reasonably priced at Walmart) others should be forced to pay for them.

      1. If we’re talking about employer-provided medical insurance, by definition the woman has a job. So she has an income, which she chooses to spend on stuff that’s not birth control. If it’s not important enough to her to spend her own money on herself, why should anybody else be expected to pick up the tab?

    5. Where exactly does the federal government derive the authority to dictate terms of employment compensation for the entire country?

      Why should anyone want the federal government to be able to make such orders?

      1. The famous “Minimum Wage Clause” in ye olde parchment.

    6. You know that only a small subset of Judeo-Christianity opposes birth control, right? And even among those that do, there are other methods of sex that allow a decent modicum of family planning.

      Like, do you ever stop to consider how bigoted you are?

      1. I know that only a very small set of religious actually avoid artificial birth control. I know that a larger set basically ignore this part of their beliefs. As I noted birth control is the Catholics, don’t ask, don’t tell. Many religions have objections to certain health care practices. What is interesting is that while some may object to vaccinations or blood transfusions, we don’t go out of our way to placate these groups. We seem to only do that for women’s health issues which we feel can be put aside to make some groups happy.

      2. You know that only a small subset of Judeo-Christianity opposes birth control, right?

        1.1 billion Catholics, including some 70 million in the US disagree, at least officially.

        That means only a small subset of Christianity supports birth control. At least officially.

    7. Do you mean that women do not get pregnant EVERY SINGLE TIME THEY HAVE SEX and a man ejaculates inside of them?

      Do you really believe the success rate of impregnation is 100%?

    8. I don’t think you get it. They are opposed to having to pay for everyone else’s birth control, including many of those not married. In other words, we are subsidizing their immoral habits. There is the problem. If they want to be immoral, at least don’t make me pay for it.

  6. Its amazing how a problem caused by government (Depression era wage controls and the special tax breaks given to employer spending on medical insurance for employees) is used to justify more government ‘solutions’ (mandating that employers provide insurance that covers things they consider immoral).

    How about we transfer those tax breaks to individuals so that the money employers are paying for group insurance can be paid to the employees to support their own, individual – and more importantly – *portable* insurance policies.

    This has the dual advantage of removing the employer’s moral choices from your medical insurance and doesn’t tie people to any particular job to maintain coverage.

    1. And the dual disadvantage of loosening government control and following the Constitution.

    2. I agree with your idea; I have on paper what appears to be a fairly comprehensive insurance plan through my employer but in reality if you look at the deductible it is a catastrophic event plan since there is little to no way we would meet that deductible for the little we use medical care throughout the year (my wife actually did a little dance of joy when we met the deductible last December so my daughters last set of allergy shots were on the insurance). With the added fun of having to go through the bureaucratic nonsense of filing all the insurance paperwork and don’t get me started on when the doctors file the wrong CPT code and the pleasure of the back and forth with the insurance and the doctor’s office (so you don’t have to pay that fifty dollars).

  7. Well, if it saves the life of one child – – – – – – – – – – – –

  8. No one is asking the obvious and basic question in this debate. When did wire Hangers get to be to expensive that this became an issue?

    1. When dry cleaners gave up.

  9. Why is the Left so insistent that the employer/state pay for birth control? If it were offered over the counter, like condoms, it would be much much cheaper. Just like condoms.

    Why must the employer/state take the role of surrogate father/husband. Are Leftist feminists unaware that that is what they are asking for? A surrogate male to look after their every need?

    Buy your own damned birth control! Hell, make it legal to buy it using WIC if it will shut them up. But don’t force my employer to provide it. Jeepers.

    1. The ACA was an exercise in buying votes with other people’s money, without the usual intermediate step of taxing it away from them. Instead the insurance companies were commanded to run a welfare program for the government. Instead of being paid for out of tax revenues, (Well, really borrowing revenues…) the insurance companies would then jack up their rates for the people not getting the subsidized insurance.

      Then the mandate would force the people being ripped off to keep their insurance anyway.

      The contraceptive mandate served two purposes. First, as a handout to a favored group, women. But secondly, as an opportunity to stick it to a disfavored group, the religious, by proving to them once again that the government had no intention of letting them live according to their own beliefs.

      The left is a big believer in Conan’s, “What is best in life”; In this case, the lamentations of their women were to come from the Little Sisters.

  10. Those in opposition to the conscience rights expansion are once again framing this as a matter of denying women access to birth control.

    Shame on you, ENB. It’s 2020. Men can get pregnant, too, and need just as much access to birth control as women.

    1. “Now we’re both on the pill.”

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