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SCOTUS Will Hear Contraceptive Coverage Rules Challenge

SCOTUS Will Hear Contraceptive Coverage Rules Challenge

November 9, 2015 — The Supreme Court on Friday announced that it will hear several cases challenging an accommodation to federal contraceptive rules for not-for-profits that hold themselves out as religious and oppose contraception, the New York Times reports (Liptak, New York Times, 11/6).

The case will be heard in early 2016, and a ruling likely will be issued before June ends (Savage, Los Angeles Times, 11/6).

Accommodation Details

The contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer contraceptive coverage to their workers. Houses of worship are exempt from the requirement, and not-for-profits that hold themselves out as religious, as well as certain closely held corporations, are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees. Instead, employees will be able to receive coverage directly from their insurers (Women's Health Policy Report, 9/21).

To claim the accommodation, the not-for-profits may either complete a form to send to the insurers or third-party administrators or send a letter to HHS stating that they object to offering contraceptive coverage in their health plans (Women's Health Policy Report, 1/20).

Legal Background

Not-for-profits that hold themselves out as religious and oppose contraception have challenged the rules in federal courts throughout the U.S. According to the Los Angeles Times, most appeals courts have dismissed the challenges, finding that the federal rules do not impose a "substantial burden" on the religious beliefs of the not-for-profits (Los Angeles Times, 11/6).

For example, writing in a unanimous ruling for a three-judge panel for the U.S. Court of Appeals for the District of Columbia last November, Judge Cornelia Pillard said, "All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form." She added, "The accommodation requires as little as it can from the objectors while still serving the government's compelling interests" (New York Times, 11/6).

However, the 8th U.S. Circuit Court of Appeals in September upheld a lower court's preliminary injunction against the contraceptive coverage rules, as well as the lower court's decision that the federal government cannot require not-for-profits that hold themselves out as religious to comply with the rules' accommodation for such organizations. The 8th Circuit's decisions countered all other rulings issued by circuit courts on the contraceptive coverage rule (Women's Health Policy Report, 9/21).

Case Details

Seven cases challenging the rules have been granted an appeal by the Supreme Court, though the high court consolidated the seven challenges into a single case, which will likely be referred to as Zubik v. Burwell, according to the Post. The seven cases granted an appeal include: Geneva College v. Burwell, Little Sisters of the Poor v. Burwell, Priests for Life v. Department of HHS, Roman Catholic Archbishop v. Burwell, Southern Nazarene University v. Burwell, East Texas Baptist University v. Burwell and Zubik.

In hearing the appeal, the high court will consider whether the rules, with the accommodation, violate the federal Religious Freedom Restoration Act (PL 103-141), which requires the government to provide a "compelling reason" for measures that "substantially burden" religious beliefs. Further, under RFRA, the government must also demonstrate that the measure in question is the least burdensome method of reaching the underlying goal (Barnes, Washington Post, 11/6).

Plaintiff, Government Arguments

According to the Los Angeles Times, the challengers argue that notifying the government of their opposition to providing contraceptive coverage is in violation of their religious beliefs.

Meanwhile, the Obama administration has emphasized that the religiously affiliated not-for-profits are not required to provide contraception if it violates their religious beliefs. U.S. Solicitor General Donald Verrilli noted that the accommodation "relieves the employer of any obligation to provide, arrange or pay for the coverage to which it objects" (Los Angeles Times, 11/6). Further, according to Verrilli, at issue in the case is whether RFRA "entitles petitioners not only to opt out of providing contraceptive coverage themselves but also to prevent the government from arranging for third parties to provide separate coverage to the affected women."

In addition, the government has also argued that the religiously affiliated not-for-profits should not be eligible for the same exemption as houses of worship (Washington Post, 11/6).


Noting that seven courts of appeal have agreed with the government, Josh Earnest, press secretary at the White House, said the administration is confident that "the policy we have in place appropriately balances the need of millions of Americans to have access to birth control, while also protecting the right of religious freedom that is protected in the Constitution" (Washington Post, 11/6).

Louise Melling, a lawyer with the American Civil Liberties Union, said, "We fight every day to protect the constitutional right to freedom of religion, but that right does not extend to imposing your beliefs on others and discriminating against them." She added, "If the court rules in favor of the employers in these cases, women will lose a benefit guaranteed by law and will literally be paying for their employers’ beliefs" (New York Times, 11/6).

N.Y. Times: Challenge to Contraceptive Coverage Rules Is 'a Well Orchestrated Assault' on Women's Rights

The lawsuit over the federal contraceptive coverage rules "is a well orchestrated assault on the right of women to control their bodies, and thus the course of their own lives, by deciding if and when they will have a child," according to a New York Times editorial.

The editorial explains that the plaintiffs "refuse to provide coverage for certain contraceptives, which they believe (contrary to scientific consensus) induce abortions." According to the editorial, "The government has already agreed that these employers are not required to provide such coverage," but the plaintiffs "refuse even to notify the government or their insurers of their refusal, which would mean using a simple two-page form designed especially for the purpose."

The plaintiffs contend that signing the form makes them "complicit in the eventual provision of contraception, and thus would violate their faith," the editorial continues. However, "once the employer has opted out, it has no obligation to do anything," the editorial states, adding, "The government, or the insurer or plan administrator, takes over and provides coverage."

According to the editorial, "The first seven federal appeals courts that considered the plaintiffs' argument against signing the form threw it out, and for good reason: There is surely a compelling interest in ensuring that women have easy access to health care, including contraception, and it is hard to imagine a less restrictive approach than requiring employers simply to sign a form."

However, the 8th Circuit "upheld the employers' argument on the grounds that they have a 'sincere religious belief' that signing the form makes them 'morally and spiritually complicit' in what they consider to be a sin," the editorial states, adding that the ruling "created a legal conflict among the federal courts, which the Supreme Court is now set to resolve."

According to the editorial, "This should not be a difficult case. In a secular society, religious freedom demands respect and accommodation, not a veto over government action that benefits others who believe differently." The editorial cites the Supreme Court's implicit endorsement of the contraceptive coverage rules' accommodation for religious not-for-profits that hold themselves out as religious in Burwell v. Hobby Lobby Stores, Inc., noting, "Even in the warped Hobby Lobby opinion itself, the court seemed to suggest that the simple process of refusal 'achieves all of the government's aims while providing greater respect for religious liberty'" (New York Times, 11/6).