Amicus briefs piled in before the Supreme Court over the contraceptive coverage argument so that each agreeing organization would have its chance to be heard. In March, the Court will hear both sides of the argument over whether the government’s “accommodation” allowing religious organizations to opt out of the requirement that they provide contraceptive coverage for their employees infringes on their religious freedom.
Sections 1001 and 1004 of the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) requires most private health insurance plans to provide coverage for a broad range of preventive services, including FDA-approved prescription contraceptives and services for women. Religiously-affiliated nonprofits and closely held for-profit corporations can opt out of providing contraceptive coverage by electing an accommodation, but they are not eligible for an exemption. When an accommodation is requested, female employees and dependents who are covered by a plan sponsored by an employer electing an accommodation have contraceptive coverage, but their employer does not have to pay for it.
The accommodation was originally created as a way to release nonprofit religiously-affiliated employers that oppose birth control from the requirement of paying for contraceptive coverage, but ensure that the employees and their dependents are able to obtain full coverage for the contraceptives to which they are entitled. This is done by requiring the insurer—rather than the employer—to bear the costs of the employees’ contraceptive coverage. Those challenging the accommodation believe that the requirements for opting out of the coverage still impose an undue burden on religion in violation of the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §2000bb).
On November 6, 2015, the Supreme Court agreed to hear the challenges of seven religious non-profits challenging the accommodation. To date, several friends-of-the-court briefs have been filed on their behalf. In favor of the religious organizations, these include: (1) Orthodox Jewish Rabis; (2) 207 members of Congress; (3) the American Center for Law and Justice; and (4) the Cato Institute, among others. The government must submit its response brief by February 10, 2016. Oral arguments are expected to be heard the end of March.