In Zubik v. Price, the Supreme Court refused to decide.
Now tens of thousands of women risk losing access to contraception.
Under an Affordable Care Act policy, most insurance plans must cover contraception. The policy includes an accommodation to the coverage requirement for religiously affiliated non-profit institutions, including universities. Those institutions can refuse to provide their students and employees with insurance coverage for contraception so long as they state their objection in writing. The government will then arrange for a third-party to pay for and provide the coverage instead.
The accommodation, however, failed to appease many non-profit institutions, including universities, and dozens of these groups challenged it in court. They argue that the mere act of filling out a form—a form relieving them of the need to comply with the policy—violates their religious freedom. They want a full exemption that strips their employees and students of contraception coverage altogether.
Nearly every court of appeals rejected the non-profit organizations’ argument and upheld the accommodation. The Supreme Court, in Zubik v. Price, however, side-stepped the issue and instead sent all the cases back down to the lower courts and urged them to consider other possible accommodations. We filed a brief in Zubik 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 these institutions.
Read why the students, faculty, and staff who joined our Supreme Court brief in Zubik v. Price say access to contraception is vital:
Analysis Of Supplemental Briefs By AU Lawyer Greg Lipper
Video: Zubik v. Burwell: Contraception And Religious Freedom - AU Lawyer Greg Lipper On PublicSquare.net
Podcast: Religious liberty And The Obamacare Contraceptive Mandate - AU Lawyer Greg Lipper On The National Constitution Center's We The People
Most People Have Sex. Most People Use Birth Control. So Why Is The Supreme Court Making It Harder To Get? - AU Executive Director Barry Lynn in Medium
AU Lawyer Greg Lipper's 7-Part Series in Harvard Law's Bill of Health:
A few questions & answers
Q. Some groups that oppose birth control access claimed the Supreme Court's non-decision was a victory for them. Was it?
A. No. The Supreme Court clearly explained that it was not dealing with the merits of this case. The cases have gone back to the lower courts, which are in a holding pattern.
Q. What's happening now?
A. In light of Zubik, the government issued a request for information on whether there are alternative ways to accommodate these institutions while still ensuring that women have access to seamless coverage for contraception. After reviewing 54,000 comments, the Obama administration concluded that there was no feasible alternative. Unfortunately, no resolution has been reached, and the employees' and students' access to contraception remains in limbo. New Trump administration regulations will add even more uncertainty to the issue.
Q. How is Americans United involved in the cases now that they are back in the lower courts?
A. In one of the cases, we represent students at the University of Notre Dame who oppose the university’s attempt to block their access to contraception. According to media reports, new Trump administration regulations will create a sweeping religious exemption—any corporation or university will be able to use religion to deny their employees and students coverage for birth control. But whether a woman uses birth control should be up to her, not her boss or university. We have twice objected in court to the draft regulations, describing how the proposal—or any change that doesn’t provide affordable, seamless access to necessary health care—will harm women. The new regulations will face further challenges in court.
Q. Why did the Supreme Court send the cases back to the lower courts?
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 effectively delayed having to consider the question by sending the cases back to the lower courts.