Working for Justice

Contraception Before the Supreme Court . . . Again!

Posted December 11th, 2015 by in Employment Discrimination.

The Supreme Court recently agreed to hear yet another challenge to the Affordable Care Act’s contraceptive coverage rule, this time from religiously-affiliated non-profit organizations who argue that even the Obama administration’s accommodation for religious institutions infringes on their religious freedom. Under the accommodation, religious non-profits can opt out of providing contraceptive coverage to their employees by simply signing a two-page form stating their religious objections. However, the groups before the Supreme Court claim that even filling out this form constitutes a religious burden.

This second challenge comes on the heels of the Court’s devastating decision in Burwell v. Hobby Lobby, which my colleagues have written about here and here. Once again, women’s reproductive rights and, in turn, their broader economic opportunities are up for debate.

Research confirms what the Supreme Court recognized back in 1992 in its landmark abortion decision, Planned Parenthood v. Casey: the “ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” According to a 2013 literature review published by the Guttmacher Institute, researchers have linked state laws granting unmarried women early legal access to oral contraception (i.e. “the pill”) to women’s increased participation in the work force and to a narrowing of the gender gap in pay.

One of the studies profiled in the review concluded that “10 percent of the narrowing in the gender gap [in pay] during the 1980s and 31 percent during the 1990s can be attributed to early legal access to the pill.” Another study found that the availability of the pill contributed to an increase in women’s labor force participation and annual hours worked. Specifically, the study found that, from 1970 to 1990, early access to the pill accounted for fourteen percent of the increase in labor force participation among women between the ages of sixteen and thirty, and fifteen percent of the increase in annual hours worked among the same population.

This research highlights the power of contraception and its significant role in shaping women’s economic opportunities. The research also underscores the importance of the contraceptive coverage rule. By requiring health insurance plans to cover contraception with no co-pay, this rule helps promote women’s participation in the workforce and contributes to their enhanced earning power. The Supreme Court’s decision on this second challenge to the contraceptive coverage rule could impact access to contraception for countless women and thus threatens to have serious economic consequences.

Melinda Koster

Melinda Koster

Melinda Koster is a Senior Litigation Counsel in Sanford Heisler Sharp’s New York Office who represents employees with a wide range of claims, including discrimination on the basis of gender, pregnancy, and age, in both public litigation and privately negotiated settlements. Learn More

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