Photo credit: Sandi Yanisko Photography 

On December 10, 2015, Judge John Jones III of the federal district court of the Middle District of Pennsylvania ruled that an antiabortion-rights organization called Real Alternatives has no substantial claim to request an accommodation from the Affordable Care Act’s contraceptive mandate.

Real Alternatives, a nonprofit, self-identified secular organization, administers the abortion-alternatives program funded by the Pennsylvania Department of Health. Pennsylvania is one of more than a half-dozen states that fund abortion-alternative programs with tax dollars, and one of three states with a Real Alternatives office. The current DHS five-year contract, valued at $30.2 million, is set to expire in 2017. Most of that money is disbursed to nonprofit service providers, all of whom must pledge to “maintain a pro-life mission” and “provide abstinence education as the best and only method” of birth control, subsequently encouraging women to dismiss abortion as a viable option when facing an unwanted pregnancy.

In January 2015, Real Alternatives Inc., staffed by only three full time employees, filed a lawsuit against HHS, arguing that it should be able to claim an accommodation from the Affordable Care Act’s contraceptive mandate offered to organizations that hold themselves out as religious and oppose contraception. By filing the suit, Real Alternatives joins a growing list of over 200 corporations that have filed similar claims that including coverage for contraceptives or opting for an accommodation violates their religious beliefs. The organization claimed that by refusing their request for the accommodation, while granting the accommodation to other organizations that hold themselves out as religious and oppose contraception, violated the Fifth Amendment’s due process clause.

In addition to the organizational suit, the three Real Alternatives employees also sued, arguing that the requirement that their employee benefits plan cover contraceptives substantially burdened their religious rights and was not the least restrictive means of achieving a compelling federal interest, and thus violated the Religious Freedom Restoration Act. One of the primary arguments presented by the staff was that the government has no legitimate purpose in mandating people to have benefits they don’t want or won’t use.

Jones dismissed the suit brought by Real Alternatives Inc., arguing that it cannot claim an accommodation to the contraceptive mandate because the organization’s argument is based on moral, rather than religious, objections. Jones argued, “Real Alternatives does not hold itself out as a religious entity, is not incorporated as such, and has not adopted any religious views or positions.”

In other words, as a self-identified secular organization, Real Alternatives claims no religious agenda and pushes no religious doctrine, yet it should be noted that the organization has obvious ties to anti-abortion religions. Jones issued a similar ruling in the staff suit, contending that their religious beliefs were not substantially burdened by a requirement that their employee benefits plan cover contraceptives.

This ruling is a huge victory for Pennsylvania women. It demonstrates that despite having a staunchly anti-choice Republican base in the Senate, some federally appointed judges are on their side. In spite of this state-level victory, however, women’s health advocates must look to the US Supreme Court as the ultimate decider of birth control coverage.

On November 6, 2015, the Supreme Court agreed to hear seven cases involving nonprofit corporations seeking an exemption from the rule, rather than an accommodation. This group of cases, collectively referred to as Zubik v. Burwell, bridges lawsuits from across the country in which nonprofit corporations object to the accommodation procedures as an unjust burden under the Religious Freedom Restoration Act. These groups claim that being forced to file an accommodation with HHS, their insurance company or a third party administrator allows their health plans to “be used as a vehicle to bring about a morally objectionable wrong,” i.e. providing birth control to their employees.

In six of these seven cases, the federal district courts ruled similarly to Judge Jones in Pennsylvania. On September 17, 2015, the 8th Circuit Court of Appeals became the first federal court of appeals to rule that the accommodation violates the Religious Freedom Restoration Act. In its upcoming ruling, set for the summer session of 2016, the Supreme Court of the United States (SCOTUS) must consider a myriad of questions in deciding whether the contraceptive coverage requirement is, in fact, violating the rights of these nonprofits.

Because these seven cases all focus on the Religious Freedom Restoration Act (a federal law) rather than the Constitution, the Justices will face questions about whether the mandate to provide free access to twenty forms of birth control drugs or devices, sterilization, screenings, and counseling imposes a “substantial burden” on the religious freedom of nonprofits that have religious objections to some or all contraceptives; whether the mandate in fact serves a “compelling interest” of the government; and whether an attempt to provide an exemption from the mandate satisfies the requirement that such an accommodation is “the least restrictive means” of achieving the government’s policy interest.

The outcome of these cases will determine if the employees and dependents of these corporations will have access to no-cost contraceptive coverage, as intended under the Affordable Care Act. If SCOTUS sides with the plaintiffs, granting these nonprofit corporations an exemption from the contraceptive mandate, employees may lose their birth control benefits for themselves and their dependents. This decision could pave the way for other nonprofits, like Real Alternatives Inc., to push their case up the judicial ladder, ultimately denying birth control coverage to millions of Americans.

About the author: Emily Eckert is a communications and health policy professional living in Washington DC. She previously worked as a community organizer to advance health policies in Pennsylvania, including advocating for Medicaid Expansion and the adoption of a family planning State Plan Amendment. She is a steadfast advocate for women’s health and rights with a particular interest in state-level health reform initiatives. Emily graduated from Allegheny College in 2014 with a degree in Women’s Studies and English.

Categories: Health

Tags: Abortion, ACA, Affordable Care Act, Birth control, Contraception, contraception mandate, Pennsylvania, Real Alternatives, Religious Freedom Restoration Act, Reproductive Health, reproductive justice, Reproductive Rights, SCOTUS, Supreme Court, Zubik v. Burwell