Supreme Court issues opinion in contraceptive mandate challenge


Today, the Supreme Court issued its opinion in Zubik v. Burwell. The per curiam opinion does not reach a decision on the merits of the case, in which religious employer petitioners argued that the Affordable Care Act’s contraceptive mandate substantially burdens the exercise of their religions in violation of the Religious Freedom Restoration Act. The Court remanded the consolidated cases, directing the Courts of Appeals to afford the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.'”

In a concurring opinion, Justice Sotomayor, joined by Justice Ginsburg, reminded lower courts that they should not construe the per curiam opinion or the Court’s earlier request for supplemental briefing as providing an indication of the Court’s views on the merits of this and related cases. Sotomayor noted that the Court has made similar disclaimers before, but”some lower courts have ignored those instructions.” She warned, “on remand in these cases, the Courts of Appeals should not make the same mistake.”

A full analysis of the decision is forthcoming; for additional information about the oral arguments in this case, see High court weighs government’s interest in protecting women’s health against hijacking religious organizations’ insurers, Health Reform WK-EDGE, March 24, 2016. For information about the supplemental briefing requested by the Court, see SCOTUS asks for supplemental briefing on alternative accommodations in Zubik, Health Reform WK-EDGE, April 1, 2016.

You can refer to Wolters Kluwer’s Health Reform Topic Page on Contraceptive Coverage for all developments related to the Affordable Care Act’s contraceptive mandate.

Supreme Court sets March date for contraceptive mandate arguments

The Supreme Court has set a 90-minute hearing on March 23, 2016, for the seven cases challenging the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) contraceptive mandate. The challenges seek a decision from the Supreme Court overturning the ACA requirement that non-profit groups take action to opt out of the mandate, allowing them to benefit from the blanket exclusion granted to churches and other religious institutions (see Supreme Court will hear 7 challenges to contraceptive mandate, Health Reform WK-EDGE, November 10, 2015).

Non-profits challenge

At issue is whether the contraceptive coverage mandate and its accommodation process, which requires the filing of additional paperwork stating objections to the provision of contraceptives, violate the Religious Freedom Restoration Act (RFRA) (P.L. 103-141) by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the government has not proven that the compulsion is the least restrictive means of advancing any compelling interest. The accommodation itself, the organizations argue, is a substantial burden on their religious exercise.

The Supreme Court will rule on whether the mandate and the accommodation violate the RFRA, but refused specifically to hear claims under the RFRA and the First Amendment that the government discriminated between those allowed an exemption and those not.

ACA implementation

The March hearing before the Supreme Court highlights the challenges found in implementing the contraceptive mandate. Despite these challenges, the ACA provision for contraceptive coverage has already directly benefited millions of women who use contraceptives by decreasing their total out-of-pocket spending on contraceptives.

According to researchers at Washington University in St. Louis, prior to the ACA, high initial costs were barriers to women using highly effective contraceptive methods such as intrauterine devices (IUDs) and implants. Cost also affected adherence to commonly used refillable methods such as oral contraceptive pills, the contraceptive patch, or the vaginal ring with recurring prescription co-payments previously required.

The researchers noted that the provision for contraceptive coverage has the potential to substantially improve public health. Access to contraception without financial barriers reduces unintended pregnancies and births, which in turn can improve maternal and infant health.

Religious ‘friends’ get their words in edgewise in Supreme Court debate

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.

ACA accommodation

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).

Amicus briefs

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.