Zubik v. Burwell: Contraceptives, Religious Freedom and the Courts

The Affordable Care Act requires most private health insurance plans to provide no-cost coverage for FDA-approved prescription contraceptives and services for women. This has been one of the most contentious and litigated elements of the health law.

Since 2012, over 200 corporations have filed lawsuits claiming their religious beliefs are violated by that provision or the “accommodation” that has been offered by the federal government.

Legal challenges have fallen into two groups: those filed by for-profit corporations and those filed by nonprofit organizations.

The Supreme Court rendered a decision on the challenge by for-profit groups in the Burwell v. Hobby Lobby case in 2014. This year, the Court is hearing challenges of the second type. Lawyers presented oral arguments in the Zubik v. Burwell case today. A decision is expected in June. The vacancy on the Supreme Court following the death of Justice Antonin Scalia has added an additional wrinkle to this case — the possibility of split decision on the Court.

To understand the Zubik case, it’s first important to know two terms in legal context.

An accommodation allows an employer to opt out of paying for contraceptive coverage by notifying their insurer, third party administrator or the federal government of their objection. The insurers or plan administrators must still include the coverage in the plan, assuring that the workers and dependents have contraceptive coverage, but it relieves the employer of the requirement of paying for contraceptives. Religiously-affiliated nonprofits and closely held for-profit corporations with religious objections to contraception are provided with an accommodation.

An exemption from birth control coverage means an employer does not have to include birth control in their plan, but unlike an accommodation the insurer is not required to provide the contraceptive coverage. These employers’ workers don’t have insurance coverage for contraceptives. Houses of worship are exempt if they have religious objections.

In the Zubik case, a group of religiously-affiliated nonprofits that include universities, advocacy organizations, nursing homes, and others, seek the same exemption from birth control coverage afforded to houses of worship. They reject the accommodation, saying it forces them to violate their religious beliefs by making them complicit in the provision of contraception.

What is the legal argument?

Legally, the two sides’ arguments boil down to this: the nonprofits contend they are unjustly burdened under the Religious Freedom Restoration Act, known as RFRA, enacted in 1993 to protect “persons” from laws that burden their free exercise of religion. They assert that the contraceptive coverage is “triggered’ by their notice, and the insurer or third party administrator utilizes their employer plan to provide the objectionable coverage. The government contends that it is federal law that requires the insurance issuer or the third party administrator to provide this coverage.

In reviewing the seven nonprofit cases consolidated into Zubik v. Burwell, the Supreme Court will have to decide:

• whether the notice and the resulting accommodation from the contraceptive coverage requirement substantially burdens the religious exercise of nonprofit organizations,
• whether the government has a compelling interest, and
• whether there is a less restrictive way of achieving the same of goal of allowing women coverage for all FDA-approved contraceptive methods without cost-sharing.

What is at stake?

There is much riding on the Court’s ruling on these cases. A 2015 Kaiser Family Foundation study found that overall, 3 percent of nonprofits offering health benefits (with 10 or more workers) have given notice for an accommodation. A much larger share — 10 percent — of nonprofits with 1,000 or more workers have given notice for accommodation. Many of these large nonprofits are likely health systems or educational institutions. Those numbers give you a sense of the share of nonprofit organizations that object to contraception on religious grounds. What is not known, however, is if the nonprofits that have obtained an accommodation would seek an exemption if that became an option. Their women employees and dependents would lose their contraceptive coverage if that were the case.

Additionally, the Supreme Court’s ruling on the Zubik case could open the door for religious objectors in other contexts to block the government or third parties from filing in the gap left by the objector.

A 10th Circuit Court of Appeals judge, in his decision on one of the cases leading to Zubik, noted other examples of when a religious objector is required to identify another person to step in: when a county clerk with objections to same-sex marriage must designate someone else to solemnize a legal marriage; when pharmacists who object to providing contraception must refer patients to another pharmacist who will dispense the contraception; when health care providers who object to implementing a do-not-resuscitate order must “turn over care of the patient without delay” to another provider who will implement the DNR order.

What happens if there’s a tie decision?

The death of Justice Scalia last month leaves the possibility that the Court will be evenly divided on this case. If the decision in Zubik v. Burwell is a 4–4 tie, the rulings for each case heard by the lower courts of the U.S. District Courts of Appeals will stand.

All of the Circuits that heard the cases of the petitioners in the consolidated case ruled in favor of the government. However, the 8th Circuit ruled in two separate cases that the religiously-affiliated nonprofits are substantially burdened by the accommodation to the contraceptive coverage requirement, and the accommodation is not the least restrictive means of furthering the government’s interests.

So while a 4–4 decision by the Supreme Court would mean that all of the nonprofits in the Zubik case would need to abide by the accommodation, it would not be upheld and enforceable in the 8th Circuit (ND, SD, NE, MN, IA, MO, AR).

Another possibility, if the Justices are evenly split, is that the Court might defer a decision and order a re-argument in the next term when there are nine Justices.

Could there be more litigation on birth control coverage and religious freedom after Zubik?

Possibly. New lawsuits may emerge from for-profit employers, such as Hobby Lobby, since federal rules issued in July 2015 also provide them with an accommodation from the coverage requirements. Like the non-profits, they too may seek an exemption.

Beginning in their new plan year (July 1, 2016), Hobby Lobby and others will be required to notify their insurer or the federal government of their objection to contraceptive coverage, qualifying them for an accommodation. Depending on the outcome of Zubik v. Burwell, some of these closely held for-profit firms may challenge the accommodation, mirroring the objections of the religiously-affiliated nonprofits in Zubik.

The outcome of all of these cases will determine if the employees and dependents of these corporations, and potentially other firms eligible for the accommodation, will have access to no-cost contraceptive coverage as intended under the Affordable Care Act.

As with most cases before the Supreme Court, the ruling also will likely have implications that go far beyond the issue of contraceptive coverage.

This post draws heavily from Contraceptive Coverage at the Supreme Court Zubik v. Burwell: Does the Law Accommodate or Burden Nonprofits’ Religious Beliefs? By Laurie Sobel @laurie_sobel and Alina Salganicoff @a_salganicoff of the Kaiser Family Foundation