Supreme Court Hears Arguments On Opt-Out Process For Religious Nonprofits That Oppose Providing Contraceptive Coverage

Supreme Court Hears Challenge To Process That Allows Religious Nonprofits To Opt Out Of Providing ACA-Mandated Contraceptive Coverage. On March 23, the Supreme Court heard arguments in Zubik v. Burwell, “a legal challenge launched by Christian groups demanding full exemption on religious grounds from a requirement under President Barack Obama's healthcare law to provide health insurance covering contraceptives”:

The U.S. Supreme Court on Wednesday appeared to be headed toward a possible 4-4 split over a legal challenge launched by Christian groups demanding full exemption on religious grounds from a requirement under President Barack Obama's healthcare law to provide health insurance covering contraceptives.

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The court heard a 90-minute oral argument on seven related cases focusing on whether nonprofit entities that oppose the requirement for religious reasons can object under a 1993 U.S. law called the federal Religious Freedom Restoration Act to a compromise measure offered by the government. [Reuters, 3/23/16]

Newspaper Editorial Boards Call The Existing Accommodation “Sufficient” And Say Plaintiffs “Do Not Have A Strong Case”

New York Times Editorial Board: The Existing Accommodation “Is Not A Substantial Burden On Religion” And The Justices Should “Reject The Plaintiffs' Absurd Argument.” In a March 21 editorial, the New York Times editorial board explained that the existing accommodation for religious groups to opt out of contraceptive coverage under the Affordable Care Act is “a reasonable balance between the government's respect for religious freedom and its strong interest in carrying out the law's mandate.” The board urged the Supreme Court justices to “reject the plaintiffs' absurd argument”:

The case arose out of a dispute over the Affordable Care Act's requirement that employers' health plans provide free contraceptive coverage to their employees. The Obama administration exempted churches, mosques, synagogues and other houses of worship from the requirement. When nonprofit organizations with religious affiliations, like universities, hospitals and social-service groups, argued that they, too, should be exempt, the administration offered them an easy way to opt out: Notify their insurer or the government, in writing, of their refusal to provide coverage. At that point, those organizations have no further role in the process; the government takes over and ensures that employees are given free access to contraceptives.

This accommodation struck a reasonable balance between the government's respect for religious freedom and its strong interest in carrying out the law's mandate. But it was still not enough for many religious-affiliated employers, who said that the very act of notification makes them complicit in the provision of contraceptives and violates their religious freedom.

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As Judge Cornelia Pillard wrote in a remarkably thorough opinion for the District of Columbia Circuit Court of Appeals, the administration's accommodation “requires as little as it can from the objectors while still serving the government's compelling interests.”

This is clearly correct. Notifying the government of a refusal to provide birth-control coverage is not a substantial burden on religion, nor does that notification “trigger” the coverage, which is already guaranteed under the law.

But last September, the Eighth Circuit Court of Appeals went the other way, holding in effect that the burden on the plaintiffs was substantial simply because they said it was.

Such reasoning has no logical endpoint. The Zubik case is not about questioning anyone's religious beliefs; it is about how those beliefs must coexist within a large and religiously diverse nation. As Judge Pillard wrote, under both federal law and the Constitution, “freedom of religious exercise is protected but not absolute.”

Although a 4-to-4 split between the court's conservatives and liberals on this case may be likely, it is not inevitable. In the Hobby Lobby decision, the court's majority opinion suggested that the notification process “achieves all of the government's aims while providing greater respect for religious liberty.” The justices should heed those words and reject the plaintiffs' absurd argument. [The New York Times, 3/21/16]

LA Times Editorial Board: The Existing Accommodation “Is A Generous Compromise” And The Plaintiffs' Argument “Is Extreme And Unpersuasive.” In a March 22 editorial, the LA Times editorial board wrote that the existing accommodation for religious nonprofits is “a generous compromise.” The board also argued that the plaintiffs' interpretation of the Religious Freedom Restoration Act (RFRA) “is extreme and unpersuasive” and that, “Were the court to accept it, Congress would have good reason to consider” revising or repealing RFRA:

The accommodation being offered the religious nonprofits is a generous compromise. In fact, the Supreme Court cited it approvingly in its 2014 decision granting a similar arrangement to Hobby Lobby and other “closely held” for profit companies. Writing for the court, Justice Samuel A. Alito Jr. noted that “HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.”

But that's not good enough for the plaintiffs here, who include the Little Sisters of the Poor Home for the Aged. Even filling out an exemption form is too much for them, they argue, because it authorizes insurers to do what they won't do -- supply women with contraceptives -- which amounts to “taking actions that violate their sincerely held religious beliefs.”

That, they say, violates their rights under the Religious Freedom Restoration Act of 1993, a law passed by Congress to protect religious freedom over and above what the Supreme Court had held that the 1st Amendment guarantees. Under the law, a “person” -- later interpreted by the court to include some for-profit corporations -- may be exempted from laws that “substantially burden” the free exercise of religion. In such cases, the government can compel compliance only if the law furthers a “compelling governmental interest” and is the “least restrictive means” of furthering that interest.

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The Religious Freedom Restoration Act was a noble attempt to provide additional breathing room for religious freedom, and it was enacted with bipartisan support. But the plaintiffs' interpretation of the law is extreme and unpersuasive. Were the court to accept it, Congress would have good reason to consider revising the statute or even repealing it. [The Los Angeles Times, 3/22/16]

Wash. Post Editorial Board: The Plaintiffs “Do Not Have A Strong Case” Against The Contraception Mandate. In a March 22 editorial, the Washington Post editorial board wrote, “The law requires the government to go a long way to accommodate religious objections” and that “it has done so” in the case of the existing accommodation. The board stated, “On every stipulation in formula, the government wins in this case”:

The Supreme Court on Wednesday will again consider the Affordable Care Act's requirement that all insurance plans provide free access to contraceptives. Some religiously affiliated nonprofit groups object -- not to the requirement per se, but to the work-around the government devised to accommodate their theological opposition to contraception. The nonprofits do not have a strong case.

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Thankfully, the law does not require that the government bow to the wishes of every person or group claiming that obeying generally applicable laws, such as paying taxes, is a violation of their religious liberty. Rather, the law requires that, if the alleged imposition on belief is “substantial,” the government must have exceptionally good reasons to enforce its policies over religious objections, and those policies must be sensitively crafted.

On every stipulation in that formula, the government wins in this case. The opt-out policy's burden on religious belief is not substantial. The government and insurers would arrange for separate contraception coverage and separate payment schemes, in some cases directly financed by federal taxpayers. The information the nonprofits would provide is the minimum necessary to enable the government to meet its clear, scientifically justified goal of lowering the hurdles women face in obtaining contraception.

It is little wonder the nonprofits have resorted to hyperbole. They warn that siding with the government might leave “no constraint on forcing Muslims to hire caterers that will serve alcohol to their wedding guests; forcing Christian colleges to contract with cable companies that will provide 'adult' channels to their residents; or forcing Jewish schools to hire vendors that will serve non-kosher meals to their students.” But the government has no compelling interest in requiring any of those things.

The law requires the government to go a long way to accommodate religious objections -- and in this case, it has done so. [The Washington Post, 3/23/16]