Zubik v. Burwell, Part 4: The Compelling Interest in Contraceptive Coverage

By Gregory M. Lipper

(Read Part 1, Part 2, Part 3, Part 5, and Part 6 of this series.)

If the Supreme Court were to conclude that the plantiffs in Zubik v. Burwell plaintiffs have established a substantial burden on religious exercise, the case is not over. Under the Religious Freedom Restoration Act, the government may enforce even a law that substantially burdens religious exercise if that law advances a compelling governmental interest and is the least-restrictive means of advancing that interest. In the 2014 Hobby Lobby decision, the Supreme Court majority assumed, without deciding, that the coverage regulations advanced a compelling interest. And in his concurring opinion, Justice Kennedy went further: It was “important to confirm,” he wrote, that “a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”

The government’s interest in ensuring that women have contraceptive coverage is compelling indeed. Access to contraception has many benefits—some of them obvious, others less so. And these benefits explain why the CDC has listed family planning as one of the 10 most important public-health advances of the 20th century.

First, the basics: Expanded access to contraceptives reduces the rates of unintended pregnancy and abortion. More than half of U.S. pregnancies are unintended, and women ages 24 and under are especially likely to become pregnant unintentionally. A big problem is that the most convenient and effective contraceptives are the most expensive; the IUD and related care, for example, costs up to $1,000. So without insurance coverage, the most effective contraceptives may be out of reach for many women.

There is more. Every year, rape causes approximately 25,000 pregnancies; increased used of emergency contraception could prevent up to 22,000 of these. In addition, 42% of unintended pregnancies end in abortion; by expanding access to contraceptives, the regulations are likely to prevent 40–70% of abortions. These are remarkable statistics.

Second, by allowing women to control whether and when to have kids, contraceptives facilitate women’s educational and professional achievement. Women with children are less likely to finish college; college dropouts do barely better on the job market than those who never started college and are unemployed at twice the rate of those with bachelor’s degrees. Women who have children and do stay in school take longer to finish their educations. Then there’s graduate work: over 3/4 of women in graduate school believe that a pregnancy would interfere with their studies. In the workplace, meanwhile, both peers and supervisors often tend to view pregnant women as less competent and are less interested in hiring, training, and promoting those women. These problems are especially serious in professions such as corporate law, academic engineering, and general surgery.

Many women, of course, will decide to make these sacrifices at various points in their lives. But access to contraceptives allows women to make their own decisions about whether and when to become pregnant.

Third, contraceptives can improve women’s health—and, for some women, can actually preserve fertility. For one, contraceptive use lets women better space their pregnancies and leads to better in infant, child, and maternal health. Indeed, unintended pregnancies not only pose greater risks to physical health, but also raise the risk of maternal anxiety and depression.

Pregnancy is also medically contradindicated for women with a wide range of medical conditions:

• Pregnancy can aggravate heart disease, lupus, sickle-cell disease, asthma, rheumatoid arthritis, and pneumonia.

• Pregnancy is contradindicated for many methods of diagnosing and treating cancer.

• Obese women can develop pre-eclampsia and gestational diabetes and have a higher risk of miscarriage.

• Pregnancy can cause more frequent seizures for women with epilepsy.

• Diabetic women can develop preeclampsia and have higher rates of congenital malformation and unexplained fetal death.

• Women with conditions such as including Marfan’s syndrome, hepatitis B or C, toxoplasmosis, genetic clotting disorders, or HIV can transmit them to their children.

• Women with pulmonary hypertension are more likely than not to die within three years of giving birth.

In addition to protecting the health of the many women with one or more of these conditions, contraceptives also provide health benefits unrelated to the prevention of pregnancy. Oral contraceptives can reduce the risk of endometrial and ovarian cancer, treat women with cysts, and alleviate severe premenstrual symptoms and dysmenorrhea. They can also treat polycystic ovary syndrome—a key cause of infertility.

Finally, access to contraception is no less important for women who work or study at religiously affiliated institutions. Many religiously affiliated entities have religiously diverse students and staff. In any event, birth control is used regularly by Catholics and Protestants alike: 98.6% of sexually active Catholic women and 99% of sexually active Protestant women have used contraception. And of women who have abortions, 28% are Catholic and 37% are Protestant.

Access to contraception is especially important for students at religiously affiliated schools. Nearly half of students attending Catholic colleges and universities have had sex by their last year of college, and students at religiously affiliated schools are as likely to be sexually assaulted as students at other schools. Many religious schools, I should add, are exempt from provisions of Title IX of the Education Amendments of 1972 prohibiting discrimination against or expulsion of pregnant students; even those schools that aren’t exempt sometimes flout these protections. In many respects, then, students at religiously affiliated schools have the most to lose from an unintended pregnancy.

This post just scratches the surface of the government’s interest in expanding access to contraception. If you’d like to read more, check out the amicus brief that my organization prepared on behalf of 240 students, faculty, and staff at religiously affiliated universities. In addition to more detailed statistics and studies, the brief presents quotes from women about the importance of contraception to them.

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The challengers to the contraception accommodation have sidestepped these undeniable benefits of expanding access to contraception, arguing instead that certain limited exceptions to the coverage regulations weaken the government’s interest. In Part 5 of this series, I’ll discuss why the regulations’ limited exceptions do not undermine the government’s interest or reduce the importance of contraceptive access to the plaintiffs’ students, faculty, and staff.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.