The U.S. Supreme Court’s action on May 16 in Zubik v. Price has left many people (and even many lawyers!) confused. What exactly did the court do (or not do), and what does it mean (or not mean)?
Q. What are these cases about?
A. Regulations implementing the Affordable Care Act (sometimes known as “Obamacare”) recognize that access to birth control is an integral part of women’s health care. As a result, health plans must include access to the full range of FDA-approved contraceptives. Houses of worship and ministries are exempt from this requirement; religiously affiliated non-profit institutions (schools, hospitals, nursing homes, etc.) and closely held for-profit corporations with religious objections to covering contraception are protected by a compromise accommodation. Under this accommodation, objectors can sign a short form (or otherwise notify the government in writing) indicating their objection to covering birth control. At that point, the federal government arranges for a third-party provider to offer contraceptive coverage to women who want it—at no cost to and with no involvement from the objecting organizations.
In these cases, however, the non-profits insist that even the simple act of filling out the form violates their rights because the government will then arrange for their students and employees to receive coverage.
Q. Did the Supreme Court issue a decision in this case?
A. Not really. Rather, the court sent the cases back to the lower courts to see if they could craft a further compromise. Unfortunately, no resolution has been reached. The religiously affiliated non-profits wanted to get rid of the contraception insurance mandate or get an exemption like houses of worship. The Obama administration refused to give in to these demands and protected access to birth control for employees at these organizations. But, the contraception coverage rule itself may now be in danger from the Trump administration and Department of Health and Human Services Secretary Tom Price. In fact, a leaked contraception coverage regulation initiated by President Trump's 2017 "religious freedom" executive order would allow any employer or university, even for-profit corporations, to cite religious or “moral” objections to get out of the Affordable Care Act's (ACA) requirement that health insurance plans cover birth control with no co-pay. There’s no backup plan. Under the Trump proposal, if the boss or university refuses to cover contraception, the cost shifts to employees and students.
Q. Some groups that oppose birth control access are claiming this is a victory for them. Is it?
A. It is not. The Supreme Court specifically stated in its order that it was not dealing with the merits of this case. It’s helpful to think of this action as a delay. The cases will go back to lower courts, which will examine them again. Eventually, the question will reach the Supreme Court again. This process might take a year or a few years. It is much too early for either side to claim victory.
Q. Why did this happen?
A. After Justice Antonin Scalia died in February 2016, the Supreme Court split 4-4 on several cases. Rather than issue another tie decision, which creates no precedent and creates different laws for different parts of the country, the justices likely tried to get some breathing room by sending the cases back to the lower courts.
Q. Will Americans United be involved in the lower courts?
A. Yes. We currently represent two students at the University of Notre Dame who have intervened to oppose the university’s attempt to block their access to contraceptive coverage. We have also filed friend-of-the-court briefs in the other cases, and we will do so again if the courts request additional briefs.
Q. Was this case decided on First Amendment grounds?
A. No. The religious objectors in these cases cite the Religious Freedom Restoration Act, a federal law that dates to 1993.
Q. What is Americans United’s view?
A. We recognize that contraception is, for most women, a crucial component of health care. Women should not be denied this access simply because they attend a religious college or work for a religious hospital or nursing care facility. (Many of the women who attend these schools or work at these facilities do not share the sponsoring religious groups’ objections to birth control.) In the Supreme Court, we filed a legal brief on behalf of almost 240 students, faculty, and staff at religiously affiliated universities who support of the contraceptive-coverage regulations.
Q. How can I learn more about Zubik?
A. We’ve collected a variety of resources, background materials, and links here.