The U.S. Supreme Court should hold that owners of for-profit companies cannot assert religious objections to deny their employees insurance coverage of contraceptive services and supplies in employer-sponsored health plans, argues a friend-of-the-court brief filed by the Guttmacher Institute and Professor Sara Rosenbaum (a member of the Guttmacher board of directors and professor at The George Washington University). The brief’s legal team was led by former Acting Solicitor General Walter Dellinger and Indiana University Professor (and Guttmacher board member) Dawn Johnsen.

At issue in two related cases (Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius), to be argued before the Court on March 25, is a provision under the 2010 Affordable Care Act (ACA) guaranteeing that most private insurance plans cover the full range of prescription contraception without cost-sharing for patients. Churches and other houses of worship are exempted from this requirement and an accommodation is in place for religiously affiliated nonprofit organizations. However, a number of for-profit companies are challenging the federal policy, claiming they too should be able to opt out of covering some or possibly all methods of contraception on the grounds that their owners deem those methods morally objectionable.

Countering the enormous amount of misinformation and distortion of the scientific evidence that opponents of the federal contraceptive coverage policy have perpetrated, the Guttmacher-Rosenbaum brief presents extensive data from the Guttmacher Institute and other leading authorities to clarify numerous key points for the legal record: methods of contraception differ dramatically in their effectiveness in preventing unintended pregnancy; methods are not interchangeable medically, or in terms of their appropriateness or ease of use for a given woman at a given point in her life; and cost is a substantial barrier to women’s ability to choose and use the best method for them based on their individual circumstances and health needs. Moreover, removing cost barriers—as the federal policy currently requires—has been proven to make a substantial difference in facilitating access to contraceptive services.

The brief further documents that improved access to effective contraception reduces women’s risk of unintended pregnancy, which in turn reduces the need for abortion and promotes women’s educational, economic and social advancement. Acceding to the companies’ position that they should be exempt from the federal policy cannot be allowed, the brief explains, since doing so would substantially burden the female employees and family members who obtain health insurance through these employers. The burden on the women would be substantial, since it would interfere with their ability to effectively plan whether and when to have a child in accord with their own religious and moral beliefs, health needs and family responsibilities.

The below excerpt from the Summary section highlights the brief’s key arguments (see here for the full brief, including all citations):

[…] Those who challenge these requirements suggest that because most women are already using contraception, the guarantee cannot be all that important. That assertion is fundamentally wrong. It fails to recognize the vastly different effectiveness and cost of different forms of contraception, the substantial degree to which cost determines which contraceptive methods are actually used, the health and social factors that affect a woman’s method choice, and the resulting consequences for women’s health, family well-being, and risk of unintended pregnancy and abortion.

First, some methods of contraception are far more effective in practice than others. For example, the hormonal intrauterine device (“IUD”) is 45 times more effective than oral contraceptives and 90 times more effective than male condoms in preventing pregnancy based on typical use.

Second, cost is a major factor in determining which contraceptives women choose. Almost one-third of American women report that they would change their contraceptive method if cost were not an issue. Initiating use of an implant or IUD can cost a month’s salary for a woman working full time at minimum wage.

Third, access to the range of contraceptive methods without cost sharing can dramatically reduce the rate of unintended pregnancy, with profound consequences for women and society. Effective family planning facilitates women’s educational and career goals and contributes to the economic stability of women and their families. Women with health conditions that increase the risk of pregnancy and childbirth particularly benefit from reliable methods of contraception, allowing them to plan pregnancy consistent with their medical needs. Enabling women to space their pregnancies better also enables them to have healthier babies. Finally, reducing the rate of unintended pregnancy is by far the most widely accepted and effective means of reducing the need for and incidence of abortion.

[…] Giving legal force to a corporate employer’s beliefs against contraception would deny to female employees and their insured family members vital access to the full range of contraceptive methods, inflicting financial harm and erecting obstacles to needed medical care.

In these cases, the shifting of a burden to third parties would involve even more than economics and personal health, as significant as they are. Denying coverage of the most effective methods (or, in some cases, all methods) of contraception leads predictably and directly to unintended pregnancies. Removing the contraceptive coverage guarantee would place some women with religious objections to abortion in what is for them a morally difficult position: they might desire but be unable to afford the most reliable methods of contraception and therefore be at increased risk for confronting an unintended pregnancy and the difficult decisions that ensue. For all women, denying practical access to the method of contraception that is right for their health and life circumstances and the well-being of their families can represent a most serious incursion into their individual moral autonomy and the course of their lives.

Affording women effective access to the full range of methods of contraception will advance their health and that of their newborns, enhance their ability to make decisions in accord with their own religious and moral beliefs, reduce the incidence of unintended pregnancy and abortion, and support the aspirations of women and society. For these reasons, the Court should hold that the Religious Freedom Restoration Act does not require the exemptions sought by the plaintiffs.