In Zubik v. Price, the Supreme Court refused to decide.
As a result, tens of thousands of women were at risk of losing access to contraception.
Under an Affordable Care Act policy, most insurance plans must cover contraception. The policy included an accommodation to the coverage requirement for religiously affiliated non-profit institutions, including universities. Those institutions could have refused to provide their students and employees with insurance coverage for contraception so long as they stated their objection in writing. The government would have then arranged 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.
New Trump administration regulations, however, let bosses and universities use religion to deny their employees and students access to contraception, making the accommodation optional. The administration even struck an backroom deal with Notre Dame to take away insurance coverage for birth control from 17,000 employees, students, and dependents covered by the university's plans. In June 2018, Americans United and allies filed a lawsuit challenging this illegal deal.
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.
New Trump administration regulations, however, let bosses and universities use religion to deny their employees and students access to contraception, making the accommodation optional.
Q. How was Americans United involved in the cases when they were back in the lower courts?
A. In one of the cases, we represented students at the University of Notre Dame who opposed the university’s attempt to block their access to contraception. New Trump administration regulations, however, let bosses and universities use religion to deny their employees and students access to contraception, making the accommodation optional. But whether a woman uses birth control should be up to her, not her boss or university.
On October 31, 2017, Americans United and the National Women's Law Center filed Shiraef v. Hargan, a lawsuit challenging the Trump administration’s contraception coverage rules. We represented women at risk of being denied birth control coverage, including University of Notre Dame students. Barely a week after we filed the case, Notre Dame reversed course on its plan to take advantage of the Trump administration rules, announcing instead that employees and students would continue to have contraceptive coverage. Because these women were promised access to birth control at the time, they decided they didn’t need to continue their lawsuit.
Then, in February 2018, Notre Dame reversed course again after signing an illegal settlement agreement with the Trump Administration. Notre Dame announced that it would stop covering certain forms of contraception for 17,000 students, employees, and their families. The Trump Administration and university bargained away these women’s rights, but we’re not going to let them get away with it.
On June 26, 2018, Americans United, the National Women’s Law Center, the Center for Reproductive Rights, and Macey Swanson LLP, challenged the illegal settlement on behalf of a group of Notre Dame students. These students aren’t afraid to fight back and say that denying women access to contraception in the name of religion is discrimination, plain and simple.
We will continue to fight to make sure all women have affordable, seamless access to contraception. Women’s health and equality and religious freedom are at stake.
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.