Supreme Court Punts In Zubik v. Burwell, Forcing Many Women
To Wait At Least Another Year Before Knowing Whether They Will
Have Access To Contraceptive Healthcare.

CASE BACKGROUND: In 2016, the Supreme Court again considered a Free Exercise challenge to the Affordable Care Act’s contraception coverage regulations. At issue was an accommodation that exempts religious entities from providing their students and employees with insurance coverage for contraception. Under the accommodation, an entity needs only state its objection in writing, and the government will arrange for a third-party to pay for and provide the coverage instead. Remarkably, many entities challenged this accommodation in court—insisting that the mere act of requesting it violated their religious freedom. 

In response, we filed a brief on behalf of 240 students, faculty, and staff at religiously affiliated universities, discussing the importance of providing contraceptive coverage to those who work or study at religiously affiliated institutions. We also joined in the successful rally outside the Supreme Court on the morning of the oral argument, and our thanks goes out to our coalition partners everyone else who joined us. 

From the students, faculty, and staff who joined our brief in Zubik v. Burwell:

Learn More About The Case:

Oral Argument Materials

Read The Transcript From The March 23rd Supreme Court Argument

Listen To The Audio From The March 23rd Supreme Court Argument

Justices Against ‘Hijacking,’ And Other Unsettling Details From The ‘Zubik v. Burwell’ Oral Arguments - AU Lawyer Greg Lipper in Rewire


From AU Executive Director Rev. Barry Lynn:

Most People Have Sex. Most People Use Birth Control. So Why Is The Supreme Court Making It Harder To Get?
- Medium

Commentary By AU Lawyers:

Video: Zubik v. Burwell: Contraception And Religious Freedom - AU Lawyer Greg Lipper On

Podcast: Religious liberty And The Obamacare Contraceptive Mandate - AU Lawyer Greg Lipper On The National Constitution Center's We The People

Zubik v. Burwell, Part 7: What To Expect When You’re Expecting At Least Another Year Of Contraception Litigation

Zubik v. Burwell, Part 6: The Accommodation Is The Least-Restrictive Option

Zubik v. Burwell, Part 5: These Exceptions Are Unexceptional

Zubik v. Burwell, Part 4: The Compelling Interest In Contraceptive Coverage

Zubik v. Burwell, Part 3: Birth Control Is Not Abortion

Zubik v. Burwell, Part 2: The Religious Objectors Who Cried Wolf

Zubik v. Burwell, Part 1: Why Paperwork Does Not Burden Religious Exercise

Press Coverage:

Obama Administration, Religious Non-Profits Open To Contraceptive Mandate Compromise - AU Lawyer Greg Lipper On CNN

Supreme Court Tie In Obamacare Case Contraception Case Appears Likely - AU Law Clerk Alison Tanner On NBC Nightly News

Zubik v. Burwell, The Newest Supreme Court Birth Control Challenge, Explained - Vox

Who Will Bear The Burden On Birth Control? - MSNBC

SCOTUS Bros Clearly Don't Understand How Women Get Contraceptives - Talking Points Memo

Birth Control At The Supreme Court: Does Free Coverage Violate Religious Freedom? - AU Law Clerk Alison Tanner On NPR

Supreme Court Hears Challenge To Obamacare Contraceptive Mandate - CNN

Supreme Court Appears Headed for Tie In Obamacare Case - NBC News

The Kennedy Question That Could Doom The Government’s Contraceptive Mandate Accommodation - Slate

How Contraception Court Challenge Hurts Religious Freedom - American Prospect

Will the Supreme Court Listen to Students About What the Birth Control Benefit Means To Them?
- RH Reality Check

Everything You Wanted To Know About Zubik But Were Afraid To Ask:

What is the accommodation?

Under the Affordable Care Act's regulations, most health-insurance plans must cover the cost of FDA-approved contraceptives, including oral contraception, the IUD, and emergency contraception. Houses of worship are exempt from this requirement. In addition, the regulations provide other religious objectors—such as religiously affiliated universities—an accommodation. The accommodation relieves religious objectors of any obligation to cover contraception if they provide written notice of their objection either to the government or their insurance company or plan administrator. Once the objector provides this notice, the government arranges for the objector’s insurance company or plan administrator to step in and provide and pay for the contraceptive coverage. 

In short, if organizations and closely-held corporations that have religious objections fill out a form and ask for an exemption, they don’t have to provide, pay for, or even inform their employees about health insurance coverage for contraception. And the employees and students get contraception insurance free of cost. Read more about the evolution of the contraception coverage regulations.

Who is eligible for the accommodation? 

Originally, the accommodation was provided only to religiously affiliated nonprofit organizations. In response to the Supreme Court's decision in Burwell v. Hobby Lobby Stores, the government offered the accommodation to closely held for-profit corporations as well. 

Why do some organizations object to the accommodation? 

The objectors claim that the mere act of requesting the accommodation violates their religious freedom because after they object, the government arranges for their students and staff to receive contraceptive coverage from a third party. It's an extraordinary argument—it would be like a conscientious objector to military service refusing to identify himself in order to prevent the Army from drafting someone else in his place.   

What is the basis for the objectors' legal claims? 

The objectors invoke the Religious Freedom Restoration Act, also known as RFRA. Under RFRA, the objectors must show that requesting the accommodation substantially burdens their religious exercise. If they do, they win unless the government demonstrates that the challenged law the least-restrictive means of fulfilling a compelling governmental interest. In short, if the law imposes a substantial burden on religious exercise, the government can apply the law only if it’s necessary to achieving an important goal. 

Have any objectors succeeded in challenging the accommodation? 

Eight of the nine federal appeals courts to consider RFRA challenges to the accommodation have rejected them. These courts have concluded that requesting an accommodation doesn't substantially burden religious exercise and that objectors have no right to block their students and employees from receiving contraceptive coverage from third parties. Only one federal appeals court has ruled in favor of the objectors. The issue is now before the Supreme Court. 

There are only 8 Justices on the Supreme Court. What happens in the event of a tie?

Although we hope that a majority of the Court rejects the challenges to the accommodation, a 4-4 tie would mean that the federal appeals court decisions, however they were decided, would stand. Because most federal appeals courts have upheld the accommodation, the accommodation would be valid throughout most (but not all) of the country. 

Why is contraceptive coverage essential for women? 

Contraception enables women to prevent unintended pregnancies, participate in educational and professional opportunities, and improve their health. And some of the most effective forms of contraception, such as the IUD, are also the most expensive; for example, an IUD and related care may cost up to $1,000 for women paying out of pocket. 

Do women at religiously-affiliated institutions use contraception? 

As we describe in our brief to the Supreme Court, an overwhelming majority of women, no matter their religious affiliation, use or have used contraception. In addition, most religiously-affiliated institutions have religiously diverse staff and students.  

Why can't the government just provide contraception itself?  

Even if it were realistic to expect that the current Congress would create and fund an entirely new government program to provide contraceptives to women, such a program would sever contraception from the rest of women's medical care. The Affordable Care Act was designed to treat women's healthcare equally—just as we don't force people to participate in a separate government program to get colonoscopies or blood transfusions, we shouldn't force women to participate in an entirely separate program to get essential reproductive healthcare. Studies show, moreover, that the extra hoops created by a separate program would likely reduce contraception use significantly.