Déjà Vu

The Supreme Court hears oral arguments for Zubik v. Burwell.

The Supreme Court Hears Oral Arguments For Zubik v. Burwell

Women’s access to reproductive health care is back at the Supreme Court. The case, Zubik v. Burwell, is a consolidation of seven cases brought by religiously affiliated nonprofits that object to the Obama administration’s accommodation to the contraceptive mandate in the Affordable Care Act. In other words, the plaintiffs in Zubik are attempting to restrict women’s access to birth control arguing that it violates their religious liberty. Sound familiar? It should. The Supreme Court heard a similar case, Hobby Lobby v. Burwell, in 2014.

Under the Affordable Care Act, employers must provide insurance that covers critical reproductive health services at no cost to employees. But the Obama administration created a system through which employees of companies who refuse to provide contraceptive coverage can still receive benefits under the Affordable Care Act. The workaround is simple: religious nonprofits can submit a two-page form or write a letter noting their religious objection to providing contraceptive coverage. Then the government finds a third-party insurer to pay for and administer the contraceptive coverage.

But now, the plaintiffs in Zubik are arguing that even this small step is a violation of the Religious Freedom and Restoration Act. The Religious Freedom and Restoration Act (RFRA) holds that the federal government “shall not substantially burden a person’s exercise of religion,” unless the government does so “in furtherance of a compelling governmental interest” and uses “the least restrictive means of furthering that compelling governmental interest.” The Supreme Court has made clear that RFRA doesn’t apply to minor or incidental burdens to a person’s faith. So at question in Zubik is whether or not the two-page form “substantially burdens” religiously-affiliated nonprofits.

The issue came up in nine circuit courts and eight of those nine courts sided with the government against the religious nonprofits. Despite the agreement among circuit courts, the case made it to the Supreme Court. If the Court rules in favor of the plaintiffs, religiously-affiliated non-profits would be able to refuse to provide reproductive health care to their employees, using their own religious beliefs to stifle the beliefs of employees. Reliable contraceptive care can be prohibitively expensive, and a decision in favor of the plaintiffs would impose negative financial and health burdens on women and their families. The contraceptive mandate at question in Zubik has already saved American women $1.4 billion on birth control pills since 2013.

Though nothing is final until the Court releases its decision, oral arguments today indicated the Court may be headed to handing down a 4-4 split decision. Typically, in the case of a split decision, lower court decisions will stand. In this case, all circuit courts except the Eight Circuit—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota—ruled that the fill-in-the-form system is lawful. In the short term, a split decision would create a considerable amount of uncertainty. For example, if the lower court decisions stand, a woman who moves from Texas where the circuit court upheld the current law to Minnesota where the circuit court did not, she could lose her right to birth control coverage. Additionally, a split decision could create a considerable amount of uncertainty for multi-state employers that could be subject to conflicting circuit court orders.

BOTTOM LINE: An employer should be able to decide when a report is due, not whether or not women have access to contraceptive coverage. A ruling in favor of the plaintiffs in Zubik would prioritize the religious beliefs of employers over employees and threaten the health and economic well-being of women and families across America.

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