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.


Read why the students, faculty, and staff who joined our Supreme Court brief in Zubik v. Price say access to contraception is vital:

AU Commentary

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, Americans United and National Women's Law Center filed Shiraef v. Hargana lawsuit challenging the Trump administration’s contraception coverage rules. In it, we fought on behalf of women who were at risk of being denied birth control coverage, including three students from the University of Notre Dame and Alicia Baker, an employee at an Indiana church whose insurance provider objected to some forms of birth control. 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 will continue to have contraceptive coverage. Alicia Baker accepted a new job and no longer has to worry about her previous insurance provider’s religious objections. These women have access to birth control and thus, they don’t need to continue their lawsuit.

The fight is not over, however. In February 2018, Notre Dame announced that it would terminate insurance coverage of certain forms of contraception, following an undisclosed settlement it claims to have reached with the government in a separate lawsuit. AU and NWLC sent a demand letter to the university and filed a Freedom of Information Act seeking information about the settlement and the school’s contraceptive coverage for its employees and students.

But countless other women will be harmed by the new rules. That’s why eight states and our allies including the ACLU are also in court challenging the rule. Federal judges in Pennsylvania and California have blocked the birth control rules.

AU continued to fight the regulations outside of court. In December 2017, we filed public comments to tell the Trump Administration that these new rules were unfair, unconstitutional, and harmful. And we joined our allies to deliver over 500,000 comments from people across the country—including Americans United supporters—who also think that attacking women’s access to healthcare is wrong.

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.