Harvard Law clinic files amicus brief defending employees’ access to no cost preventive health care

Harvard Law School’s Center for Health Law and Policy Innovation (CHLPI) filed an amicus brief to the U.S. Supreme Court in Zubik v. Burwell, an Affordable Care Act (ACA) challenge set for argument on March 26. The brief asks the Court to affirm Court of Appeals’ decisions upholding the federal policy of maintaining access to free preventive care, including contraceptive services, in employer-sponsored health plans.

Currently, federal law allows employers to “opt-out” of financing access to no cost contraceptive services, provided the employers furnish notice to the government so that alternate financing can be arranged for their employees. The challengers in this case seek to foreclose this alternative access for their employees, which would force employees to pay out of pocket for contraceptive services.

The brief warns that if the Court grants a contraceptive services exception, “[r]eligious employers will continue to ‘edit’ the mandated package of preventive services, and chip away at other coverage of these conditions.” The Center said it has already received reports of employers using religious objections to avoid covering HIV medications on the health plans they offer employees.

Twenty-six non-profit organizations signed onto the brief, including many health care access and HIV advocacy organizations. The signatories say this case is about more than just access to contraception. By creating a precedent that allows for a contraceptive services exception, the brief argues, the Court could create a scenario that motivates other religious employers to try to block no cost access to a broad range of preventive care services, including screening for HIV, HCV, and depression; substance abuse counseling; and vaccinations, such as flu shots. The brief also argues that a contraceptive services exception would prevent women from being able to control their fertility in the face of public health emergencies, such as the Zika virus epidemic.

According to the brief, religious employers may similarly object to other services offered in the mandatory package of no cost preventive care. HCV, similar to HIV, is identified with stigmatized behavior, including intravenous drug use and sexual activity that is disapproved by a variety of religious organizations. Depression is often treated with anti-depressants and other psychiatric drugs. Certain religions such as Scientology, however, consider these treatments anathema. Jehovah’s Witnesses, Christian Scientists, and some churches that believe in faith healing have sincere religious objections to vaccinations, including flu vaccinations.

“Preventing religious employers from making health care access decisions for their employees is critical to ensuring that the ACA will carry out its intended goals and that the health of employees remains our top concern,” said Robert Greenwald, clinical professor of law and faculty director of CHLPI. “This is particularly important as we work to create a health system that focuses on prevention and early intervention health care that both improves public health and health outcomes and reduces costs.”

The brief discusses the low levels of preventive care prior to the ACA and explains how the financial barriers to these services resulted in Americans not getting the care they needed. The brief then argues the importance of mandating no cost access to a standardized package of preventive services in employer-sponsored health plans. The majority of non-elderly Americans receive their health care through employer-sponsored health plans.

Carmel Shachar ’10, a CHLPI clinical instructor notes, “If the Supreme Court finds for the employers bringing this case, Americans’ ability to access no cost preventive services and make the health choices that are right for them could be seriously impaired. We would also lose a valuable tool for improving overall public health and being able to respond to serious public health crises, such as Zika virus or swine flu.”

The amicus brief was prepared by staff and students at the Harvard Law School Center for Health Law and Policy Innovation.

Lauren Kuhlik ’17 said the brief was designed to remind the Court that their decision could impact more than just an individual’s ability to make their own reproductive choices. “The United States has a historically low rate of consistent contraceptive use, and only comprehensive preventive coverage can address this public health issue,” Kuhlik said.  “We also wanted to bring to the Court’s attention that their decision could limit employees’ access to other potentially controversial preventive services, such as HIV and hepatitis C screenings.”

Kelly Jo Popkin ’17 said: “Working on this brief gave me insight into the role that amicus curiae briefs can play in influencing court decisions.  Writing an amicus brief is different from writing a party brief because you are trying to make sure that you are representing your client’s unique perspective.  In this case, we focused on the concerns of health care access, HIV, and hepatitis C advocates.”