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Experts Available to Comment on Challenges to ACA Contraception Coverage

Released: 24-Mar-2014 5:00 PM EDT
Source Newsroom: Indiana University
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BLOOMINGTON, Ind. -- The U.S. Supreme Court will hear oral arguments Tuesday, March 25, on two cases involving the contraception coverage guarantee of the Affordable Care Act. Experts at the Indiana University Maurer School of Law are available to comment on these cases and their potential implications.

In Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, the court will decide whether the First Amendment to the U.S. Constitution or the Religious Freedom Restoration Act allow a for-profit corporation to deny its employees health care coverage for contraceptives based on the owners’ religious opposition to birth control. Federal law contains an exemption for some religious organizations, but not for for-profit corporations.

Professor Dawn Johnsen co-authored an amicus curiae brief in these cases with former acting solicitor general Walter Dellinger on behalf of the Guttmacher Institute and Professor Sara Rosenbaum of George Washington University. The brief details the harm to women, their families and the public health that would result if the court were to rule in favor of the corporations and argues that the proper interpretation of the law avoids these harms.

“To allow for-profit employers to deny women access to the contraceptive coverage to which they otherwise are entitled would for many women result in the use of contraceptive methods that are not optimal for their health and life circumstances and that are far less effective. For example, the use of an IUD is 90 times more effective than male condoms, but can cost a woman making minimum wage a month’s salary.

“The empirical data establishes what common sense tells us: if the court allows employers’ religious objections to limit women’s health care decisions in this way, women not only will suffer economic harm and an affront to their own religious and moral views, they also will experience greater numbers of unintended pregnancies, some of which will end in abortions.”

Daniel O. Conkle, the Robert H. McKinney Professor of Law at the Maurer School, agrees these are important cases, and he notes that they may have implications extending beyond the Affordable Care Act.

“Nearly four dozen lawsuits have been filed by for-profit, closely-held corporations whose owners challenge the contraception mandate on religious grounds, and the Supreme Court will need to resolve the existing split among the U.S. Circuit Courts of Appeal,” he said. “These cases raise fundamental questions about the scope of religious liberty, including the right of religious objectors to special legal accommodation, even in the commercial sphere.

“The court could decide the pending cases narrowly, confining its decision to the particular context of the ACA, or it could rule more broadly,” Conkle added. “For example, it could rule that for-profit corporations simply are not protected by the Religious Freedom Restoration Act and therefore cannot invoke its provisions. Or it could rule broadly in the other direction, establishing a precedent that might permit religiously oriented corporations to object to legal requirements in a variety of settings.”

Johnsen is an expert on constitutional law, the First Amendment and reproductive rights. She served as acting assistant attorney general in the U.S. Department of Justice Office of Legal Counsel in the Clinton administration. She is available to comment on these cases and can be reached at djohnsen@indiana.edu or 812-855-3942.

Conkle is an expert on constitutional law, the First Amendment, and law and religion. He also is an adjunct professor at IU Bloomington’s Department of Religious Studies in the College of Arts and Sciences. He is available to comment on these cases and can be reached at conkle@indiana.edu or 812-855-4331.

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