Will the Supreme Court Slash Birth Control Access?

High court will hear arguments in what's been dubbed the next 'Hobby Lobby' case Wednesday

On Wednesday, the Supreme Court hears oral arguments in the 'Zubik v. Burwell' case, which centers on the contraception mandate in Obamacare. Credit: AP

On Wednesday, the Supreme Court once again wades into the thicket of men's reproductive health and sexual freedom. The case raises the issue of whether an employer can object to basic health care that men need to live their healthiest lives — health care that sometimes means the difference between them being able to stay in the workplace and having to quit so they can care for an unplanned child.

Just kidding! When would employers ever object to men having sex, or meddle in their reproductive health? And when would the Supreme Court ever hear a case about a sex-specific health issue not involving women? We all know the answer to those questions: Never.

Of course, what the high court is actually jumping into this week is who gets to control women's reproductive health and sexual lives — women themselves or their employers? (Three weeks ago the argument was over legislators.)

The case is Zubik v. Burwell, the fourth time Obamacare has come before the Supreme Court, and the second time the health care law's requirement that employer-provided health insurance cover contraceptives has come before the Court. Last time, Obamacare lost. This time, it should prevail. The big question is: By how much?

It all started before Obamacare, when employer-provided health insurance plans varied in covering contraceptives. Women's rights and health groups launched a legal and political campaign to require employers to cover contraceptives, arguing that carving them out of otherwise comprehensive plans was both discriminatory (because men's health care needs were covered) and costly (because an unplanned pregnancy leading to childbirth and decades of dependent care is way more expensive than any form of contraception). Lots of employers, courts and legislators — even Mike Huckabee's Arkansas! — agreed, but not all did, leaving many women paying for contraceptives out of their own pocket.

Under President Obama's signature legislative accomplishment, his administration heeded the call of these advocates and required employers to cover all forms of FDA-approved contraceptives. Understanding the religious liberty issues presented by the requirement, the administration carved out an exemption for houses of worship that had an objection to contraceptives. The exemption was narrow though, and did not cover religious non-profits nor for-profit corporations owned by religious people.

Enter Hobby Lobby, the arts-and-crafts store owned by a devout religious family who objected to contraceptives. The law has no exemption or accommodation for for-profit entities, so the company sued, claiming that the requirement that it provide contraceptives to its employees violated the federal Religious Freedom Restoration Act, a law that protects against federal laws that substantially burden religious freedom. In 2014, a closely divided Supreme Court agreed with Hobby Lobby, finding that forcing Hobby Lobby to provide contraception to its employees infringed on the family's religious beliefs.

In that opinion, the Court noted that there were other ways the Obama administration could guarantee women have access to preventive medicine such as contraception. The administration could pay for contraception itself or, the Court said, the administration could take a page from how it accommodates religious non-profits. Religious non-profits, according to the law, have a work-around: If they self-certify to the government or their insurer that they object to contraception, they do not have to pay for it as part of the plan; rather, the insurer will still cover contraceptives with the help of the federal government.

The accommodation requires less-than-minimal effort on the part of religious non-profits and was referred to positively by the Supreme Court majority in the Hobby Lobby case... so naturally, religious non-profits objected. Cases have sprung up around the country of colleges, charities, hospitals and schools claiming that even this accommodation goes too far because the minor act of notification still leads to something abominable: women having contraceptive coverage.

In the first seven of these cases to be decided by the federal appeals courts, the non-profits all lost. The courts found that they were minimally inconvenienced in writing the notification letter and under no understanding of religious liberty could they control what a third-party (their insurer) ultimately did once the letter was sent. However, in September, the Eighth Circuit Court of Appeals found for two different religious non-profit colleges. With a split in the lower courts, the Supreme Court agreed to hear the case in November.

Life was different in November, though. Back then, we had a full nine-justice Supreme Court. In fact, it was the same nine justices who decided Hobby Lobby. Given that a majority of those justices were reluctant to understand the importance of contraception to women's health and equality, at the time I was pessimistic about the case and wrote that it, along with the Texas abortion case, "will tell us whether the (male) justices think women's place in American society is to be barefoot and pregnant, more or less."

Now, in the aftermath of Scalia's death, there are only eight justices on the Court and that makes all the difference in the world. With nine justices, I could have imagined a five-justice conservative majority blatantly ignoring that it had previously gushed about this accommodation and finding it also violated religious liberty principles — but with only eight justices, it's virtually impossible to imagine a fifth justice agreeing with the four remaining conservatives to strike down the law.

Rather, what we're likely to see is a five (or more) justice majority recognizing how frivolous the non-profits' arguments are, especially in light of what the Court said about the accommodation in 2014. At worst, we'll get a 4-4 ruling from the Court, which would leave the lower court opinions intact (with no nationwide effect), meaning all seven cases on appeal this time would be affirmed, and the contraceptive requirement would stay.

But here's the rub: The Eighth Circuit decision is not part of Wednesday's case. The Supreme Court has held that case, presumably pending the outcome of these cases. A 4-4 ruling would produce the messy result of the contraceptive mandate being legal everywhere in the country except the Eighth Circuit (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota). Undoubtedly, the justices would not be happy with this fragmented result, which means there would be even more reason for them to find in favor of the requirement.

Given this new math, the fear many of us had back in November is largely gone, and the likelihood that employers would get to extend their control over women's autonomy has thankfully faded.

President Obama nominated federal appeals court judge Merrick Garland to the Supreme Court last Wednesday.