WashU Expert: Supreme Court birth control challenge bad for employees

The United States Supreme Court agreed Nov. 6, for the fourth time in three years, to rule on challenges to the Affordable Care Act. This time, religious nonprofit organizations are objecting to the law’s birth control mandate.


The court’s 2014 decision in the Hobby Lobby case to allow corporations to opt out of covering certain forms of birth control for employees was an anti-religous liberty decision, said Washington University in St. Louis health law expert Elizabeth Sepper, JD, associate professor of law.

This new case would go a step further in limiting those freedoms, she said.

The court will rule next term on whether the mandate itself violates the Religous Freedom Restoration Act of 1993.

“This is complicity by contract,” Sepper said. “If having to ask for an accomodation from the law is a substantial burden on relgious belief, then everything is.”

Sepper said that to get out of complying with the mandate, these large nonprofit organizations are only required to send a letter to the government stating their objections.

“Every court of appeals but one has concluded that having to mail a letter can’t be a substantial burden on religion,” Sepper said.

A decision siding with large nonprofit corporations in this new case means that employers would prevail at significant cost to employees, she said.

In the Hobby Lobby decision, Sepper said, the Supreme Court tried to work out a compromise, where employees would still have access to contraceptive coverage but their employers would not have to provide it.

“If the Supreme Court were to side with the large employers in this upcoming case, their employees would be totally stripped of access to contraceptive coverage,” she said.

Sepper is an expert on health law, religious liberty and religious exemptions. She is available for comment to the media at esepper@wustl.edu.

For more on Sepper’s views on the Hobby Lobby decision, see her Harvard Law Review article.

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