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.

Religious organizations file a plan B for contraception challenge

Religious non-profits seeking an exemption from the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) mandate that employers pay for contraceptives as part of standard health insurance plans are gearing up for the March 23, 2016, hearing scheduled in front of the Supreme Court. In November, the Court consolidated seven cases challenging the birth-control mandate into one: Zubik v. Burwell. Unhappy religious organizations outside of the seven are not waiting for the Supreme Court’s decision to make their next move, they have already filed another petition before the Court.

In this, the fourth legal challenge of the law to be accepted by the Court since the ACA was passed in 2010, involves religious, non-profit corporations that morally object to the ACA provision that allows their employees to obtain contraceptive coverage through their health insurance, even if those contraceptive products are provided by insurance companies and the government, and not by the institutions. These organizations claim that this indirect participation is offensive and violates their rights to religious freedom. The federal government, however, believes that these institutions have numerous employees who may not necessarily share the beliefs of religious groups that sponsor the non-profits, and these workers would be harmed by the exclusions.

Grace Schools and Diocese of Ft. Wayne

Just in case the Supreme Court does not decide in favor of the religious organizations, two groups that were unsuccessful in front of the Seventh Circuit, Grace Schools and Biola University, and Diocese Of Fort Wayne-South Bend, Inc., filed a petition for writ of certiorari as well. These cases were also decided in favor of the government. On September 4, 2015, the Seventh Circuit issued a decision denying the request for a stay of the enforcement of the ACA’s contraception coverage requirement, holding the accommodation does not impose a substantial burden on their religious beliefs (see 7th Cir Court sticks to its guns overturns injunction for non-profit employers, Health Reform WK-EDGE, September 9, 2015). This petition filed before the Supreme Court requests a hold on the enforcement of the provision, but the Court has not yet responded.


The government also filed a response brief in Zubik v. Burwell. In the brief, the government again claims that the accommodation regulations do not constitute a substantial burden which imposes on the organizations’ religious beliefs. It also states that the accommodation is the least restrictive means of furthering the government’s compelling interest in providing women with full and equal health coverage.

Justice Scalia’s absence

Now that the measure of liberals versus conservatives on the court has changed, the most likely outcome is a four-to-four tie among the justices that would leave the contraceptive mandate in place for the non-profits.