Preview: Zubik v. Burwell

The contraceptive benefit requirement of the Affordable Care Act returns to the Supreme Court on March 23, when the Court will hear oral arguments in seven consolidated cases from four courts of appeals in Zubik v. Burwell. Zubik will test the scope of religious exemptions and accommodations to the contraceptive mandate under the Religious Freedom Restoration Act (RFRA). The Court first addressed the ACA’s contraceptive mandate and RFRA in Burwell v. Hobby Lobby (2014).

The contraceptive benefit requirement of the ACA requires employers to cover 20 FDA-approved contraceptive methods for women employees without copayment or coinsurance. This insurance mandate provoked vehement religious opposition from its inception. In response to the first wave of religious protest, the Obama administration completely exempted churches and their integrated auxiliaries from the requirement. The government’s original and flawed rationale for the exemption was that churches and their integrated auxiliaries are “more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.”

A second wave of protests greeted the church exemption. Led by Belmont College and the University of Notre Dame, numerous nonprofit religious schools, hospitals, universities, dioceses and social service agencies argued that they too deserved the complete exemption awarded to the churches. Those religious nonprofits went to court arguing that the contraceptive mandate violated their religious freedom under RFRA, which allows plaintiffs to challenge laws that substantially burden their free exercise of religion. Once plaintiffs prove a substantial burden, the government must demonstrate that it used the least restrictive means to achieve a compelling governmental interest.

The courts put the religious nonprofit cases on hold while the Obama administration drafted an accommodation (not an exemption) for the religious nonprofits. Under the earliest versions of the accommodation, a religious nonprofit had to self-certify through use of a government form that it opposed coverage for contraceptive services. Once the organization made that certification, “the organization’s insurance issuer or third-party administrator [had to] ‘[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan’ and ‘[p]rovide separate payments for any contraceptive services required to be covered’ without imposing ‘any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.’” Burwell v. Hobby Lobby (2014).

While the religious nonprofit cases were on hold, religious for-profit businesses led by the crafts store Hobby Lobby went to court arguing that RFRA entitled them to the accommodation granted to the nonprofits. In the contraceptive mandate’s first trip to the Supreme Court, the Court agreed (in a 5-4 decision) that RFRA required Hobby Lobby and other religious for-profits to receive the nonprofits’ accommodation. Under RFRA, once plaintiffs establish that their religion is substantially burdened, the government must meet the very stringent standard of proving that it used the least restrictive means to achieve its compelling governmental interest. According to the majority opinion in Hobby Lobby, because the government had already created the nonprofits’ accommodation (which is less restrictive of religious freedom than the contraceptive mandate itself), Hobby Lobby and the other for-profit businesses were entitled to the accommodation because the government had failed the least restrictive means test.

The religious nonprofits, however, had always demanded the complete exemption awarded to the churches. Therefore they went back to court arguing that the accommodation itself violated their religious freedom under RFRA. Relying on an assortment of moral complicity arguments, the nonprofits variously alleged that signing the form, providing insurance policies that triggered insurance coverage, and/or authorizing the TPAs to provide insurance substantially burdened their religion because the government was forcing them to cooperate in grave sin.

Eight of nine circuit courts of appeals rejected the nonprofits’ arguments. Some courts focused on the substantial burden requirement of RFRA, concluding that notifying the government was not a substantial burden or that plaintiffs were factually incorrect that their signature immorally triggered insurance coverage because the ACA itself was the trigger. Other courts focused on the least restrictive means and compelling governmental interest standards, concluding that the government has a compelling interest in women’s health and that no less restrictive means of providing women with contraceptive healthcare coverage than the accommodation is available.

After the Eighth Circuit ruled for the nonprofits, however, a circuit split existed, and the Court granted cert. on cases on appeal from the Third, Fifth, Tenth and D.C. Circuits. In addition to the lead named plaintiff, Rev. David A. Zubik (the Roman Catholic bishop of Pittsburgh), other Petitioners/Appellants include the Little Sisters of the Poor, East Texas Baptist University, the Roman Catholic Archbishop of Washington, Southern Nazarene University, Geneva College and Priests for Life, who all lost their cases below.

Because the Supreme Court issued an order immediately post-Hobby Lobby allowing religious nonprofit Wheaton College merely to notify the government of its objection to contraception (rather than to fill out the official government form or contact the health insurance company or third-party administrator), the accommodation now requires religious nonprofits only to send a letter to the government voicing their objection to the mandate and identifying their insurance company. Wheaton College v. Burwell (2014).

Before the Court, the most important issues will be the substantial burden and least restrictive means components of RFRA. Justice Alito’s opinion of the Court in Hobby Lobby was extremely deferential to religious plaintiffs, suggesting that it is inappropriate for courts to examine or second-guess a plaintiff’s claim that notifying the government is burdensome. If Alito’s reasoning prevails in Zubik, it is likely that the Court would defer to Petitioners’ burden argument even if notifying the government of a long-held objection to contraception appears to be a minimal inconvenience to the non-religious eye, to the government, and to many courts of appeals.

A plurality of the Court (Alito, Roberts, Scalia, Thomas) “assumed” in Hobby Lobby that “the interest in guaranteeing cost-free access” to contraception is compelling, and Justice Kennedy’s concurrence emphasized “[i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation …furthers a legitimate and compelling interest in the health of female employees.” With the compelling governmental interest accepted by the entire Court, therefore, the least restrictive means analysis will be decisive for the government’s case. The Petitioners’ briefs argued that it would be less restrictive of their religious liberty if the government paid for contraception or if women either bought their own contraceptives or purchased contraceptive-coverage-only insurance plans from or other insurance providers.

The government and their amici have persuasively argued, however, that these means are not currently available to women employees; most insurers, for example, do not really offer contraceptive-insurance-only policies, and it would tremendously burden women employees to search for their own new insurance coverage. If Justice Kennedy was serious in his Hobby Lobby concurrence that the least restrictive means must be an “existing, recognized, workable, and already-implemented framework to provide coverage,” then the government should survive the difficult least-restrictive-means test.

The force of that argument would double if the Court follows its regular RFRA analysis and weighs the burden of this accommodation against its effect on nonbeneficiary, third-party women employees whose health insurance would be affected if Petitioners gain the exemption they desire. Cutter v. Wilkinson (2005). On the facts of this case, moreover, it is difficult to imagine a less restrictive means than asking the Petitioners to do what they have already done, namely publicly assert their objection to contraception and tell the government they do not want to pay for it.

When cert. was granted in Zubik, most Court-watchers turned to Justice Kennedy because his concurrence provided the fifth vote for Hobby Lobby. In Justice Scalia’s absence, however, the odds have moved slightly toward the government. A 4-4 tie would affirm, without precedent, the four lower courts’ rulings for the government. Alternatively, Justice Kennedy might join the Hobby Lobby dissenters (Ginsburg, Breyer, Sotomayor, Kagan) to produce a 5-3 majority for the government. Unknown, of course, is whether this Court would put off for another term its second contraceptive mandate and fourth ACA case so that the case could be reargued before a full Court.


Leslie C. Griffin

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School.