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Paul, Weiss Files Amicus Brief in Support of Contraception Regulations

Paul, Weiss filed an amicus brief on behalf of the National Women's Law Center (NWLC) and 68 other organizations in the Supreme Court of the United States in support of the contraception regulations in the Patient Protection and Affordable Care Act (ACA). 

The Supreme Court proceeding is a consolidation of seven cases involving challenges to the contraception regulations promulgated under the ACA, which provide that new health plans must include coverage for "[a]ll [FDA] approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity." The regulations provide an accommodation to certain non-profit and for-profit entities that have religious objections to the coverage requirement. Under the accommodation, an objecting entity may inform its insurance issuer or the Department of Health and Human Services of its religious objection. The insurance issuer then fulfills its existing legal obligations by separately providing payments for contraceptive services. Petitioners are non-profit entities that are eligible for the accommodation but claim that compliance with the accommodation violates the Religious Freedom Restoration Act (RFRA). RFRA provides that the government may not substantially burden a person's exercise of religion unless that burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest.

NWLC's amicus brief focuses on the compelling interest and least restrictive means prongs of the RFRA test. The brief argues that the contraception regulations serve two compelling governmental interests. First, the contraception regulations promote public health because contraception treats and prevents certain health conditions and also decreases the number of unintended pregnancies, which result in negative health consequences for women and children. Second, the contraception regulations promote gender equality. Prior to the contraception regulations, women were forced to pay more in out-of-pocket health care expenses than men, and the contraception regulations help combat this inequity. Moreover, contraception allows women to participate in education and the workforce. Additionally, the brief asserts that the petitioners' proposed alternatives for providing contraceptive coverage, such as requiring women to purchase contraception-only health plans, do not effectively advance the government's compelling interests and thereby fail to satisfy the least restrictive means test. NWLC explains that the petitioners' proposed alternatives in fact would undermine the government's compelling interests. 

The Paul, Weiss team included litigation associates Priyanka Wityk, Abel McDonnell and Luke O'Brien. The team was supervised by litigation partner Chuck Davidow

February 23, 2016

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