This story was co-published with Mother Jones.
We updated this Q&A to reflect the Supreme Court order issued today sending Zubik v. Burwell back to multiple appeals courts to find a compromise between the government and religious nonprofits on the Affordable Care Act’s contraception mandate.
Three weeks after oral arguments in what could be the most important abortion rights case in a generation, the U.S. Supreme Court is poised Wednesday to hear a second reproductive-rights case with potentially huge stakes. The central question in Zubik v. Burwell is whether President Obama’s signature health care law, the Affordable Care Act, improperly forces religious nonprofits — everything from nursing homes to universities — to compromise their beliefs by requiring them to take part in a process that requires employee health insurance to pay for contraceptives. Legal analysts have called the case Hobby Lobby Part 2, and like that landmark 2014 ruling by the high court, Zubik has implications far beyond the realm of reproductive health care.
The religious groups contend that even the simple act of signing a bureaucratic form violates their core beliefs if it helps employees obtain birth control. “It’s an unprecedented challenge to the very process by which a religious objector gets out of complying with the law,” said Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center. “This is something we have not seen before.” A ruling in favor of the religious nonprofits would not only undermine key provisions of the ACA, but it could lead to challenges to laws meant to protect gays and lesbians from discrimination, Borchelt said.
The religious petitioners make their own slippery-slope argument. “We could quickly see this turning into abortion coverage as something mandated,” said Patrick Reilly, president of the Cardinal Newman Society, a Catholic education watchdog. “We could even see mandatory coverage for the drugs needed for assisted suicide in states that have legalized it.”
To help sort through the issues raised by the case, here are answers to some of the most common questions.
Q. What does the ACA require employers to do that religious organizations object to?
Conservative organizations, including some religious groups, dislike many aspects of the health reform law, which has already survived two existential challenges before the Supreme Court. Some of the most vehement recent objections, though, have been to provisions aimed at improving women’s access to reproductive health care. The Affordable Care Act requires employers and insurance companies to cover the costs of all forms of contraception: birth control pills, emergency contraception, hormone injections and implants, intrauterine devices and tubal ligations. Some religious groups, such as the U.S. Conference of Catholic Bishops, say any type of birth control violates their church teachings. Others — including some evangelicals — mostly object to so-called “abortifacients” that they claim work by preventing fertilized eggs from implanting in the uterus. (Opponents most commonly point to IUDs and emergency contraception, though reproductive health advocates insist that these forms of birth control work by impeding ovulation or fertilization, not implantation.) The religious objectors claim that forcing them to cover birth control for their employees violates their rights under the federal Religious Freedom Restoration Act.
Q. What’s the Religious Freedom Restoration Act?
The RFRA states that the government may not “substantially burden” the free exercise of religion unless it can show a “compelling interest.” The law passed in 1993 with almost-unanimous, bipartisan support. A 1997 Supreme Court ruling held that RFRA only applied to the federal government; since then, at least 21 states have passed their own versions of the law.
Q. What steps has the Obama administration taken over the years to accommodate religious employers who object to birth control?
The Obama administration always knew there would be pushback to the contraception mandate. Early on, it issued an exemption for houses of worship, which do not have to provide contraceptive coverage.
On Jan. 1, 2014, a new set of accommodations went into effect: Religiously affiliated nonprofits could file something called an EBSA Form 700, informing their insurance providers that they objected to providing contraception through their employee health plans. This would set into motion a process by which insurers would provide the contraceptive coverage directly to employees, without imposing a fee on the nonprofits or involving them in any way.
In August 2014, after a Supreme Court ruling in favor of the Christian-run Wheaton College, the administration updated the rules again: Instead of filing Form 700, a nonprofit could just send a letter to the government stating its religious objection to birth control. The government would then work with the nonprofit’s insurance provider to facilitate the contraception coverage.
Q. Why have some religious groups continued to object?
The nonprofits don’t want to be forced to do anything that makes it possible for their employees to obtain birth control. The mere act of filling out a form or writing a letter makes them “complicit in a process” that they consider sinful, the Conference of Catholic Bishops argued in a friend-of-the-court brief in the Zubik case. As another nonprofit put it, the Obama administration’s various accommodations have given religiously affiliated organizations “multiple options for violating their sincere religious beliefs instead of just one.”
Greg Lipper, an attorney for Americans United for Separation of Church and State, said the nonprofits’ argument was “rather unprecedented.” “It’s as if I had a conscientious objection to serving in the war and I was given and exemption to the draft, but I refused to even accept that exemption because someone else would be drafted in my place.” Reproductive rights supporters contend that if the nonprofits’ argument holds, religious objectors would be given sweeping new powers to influence actions by third parties — in this case, employees who want to obtain coverage for their birth control from an outside source.
University of Virginia law professor Douglas Laycock, a leading scholar who leans conservative in the area of religious liberty, warns that the nonprofits objecting to the Obama accommodations are their own worst enemy and run the risk of losing what they already have. Two years ago, he filed a brief in support of Hobby Lobby; this time, he filed one siding with the government. “If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become all-inclusive, many of them will not enact any religious exemptions at all,” he wrote in a Washington Post op-ed. “And they will start repealing the exemptions they have already enacted.”
Q. How have the courts responded to the nonprofits’ arguments?
Religious nonprofits filed a wave of lawsuits challenging the Form 700 requirement. Most prominent was the Little Sisters of the Poor, an international order of Catholic nuns that operates some 30 nursing homes in the United States; another case was filed by Bishop David Zubik of the Diocese of Pittsburgh. But federal appeals courts were unanimous in siding with the Obama administration.
Then, in September 2015, the Eighth U.S. Circuit Court of Appeals, which is based in St. Louis and encompasses seven states, ruled in favor of the nonprofits. That set up what’s known as a “circuit split,” forcing the Supreme Court to step in. Zubik consists of seven consolidated cases, including the one brought by Little Sisters of the Poor.
Q. Where does the Hobby Lobby decision fit into this picture?
Traditionally, the religious freedom act was meant to apply to individuals and religious organizations. But some for-profit businesses also objected to the contraceptive mandate. One of these was Hobby Lobby, a privately held chain of craft stores whose owners are evangelical Christians. In its 2014 ruling, the Supreme Court found 5–4 in favor of Hobby Lobby, extending RFRA’s protections to closely held, for-profit corporations (family owned businesses and those with a limited number of shareholders).
To comply with Hobby Lobby, the Obama administration extended the religious-nonprofit accommodation to closely held, for-profit companies whose owners objected to birth control on the basis of religion. Thus, if the Supreme Court were to rule in favor of the nonprofits, closely held for-profit companies and their employees would also likely be affected.
Q. How many nonprofits have filed Form 700? How many have notified the government of religious objections by letter?
The exact numbers aren’t known. A 2015 Kaiser Family Foundation survey found that an estimated 3 percent of nonprofits with 10 or more employees — and 10 percent of nonprofits with 5,000 or more employees — had asked for an accommodation for religious reasons (Kaiser surveyed 1,997 public and private employers with three or more workers). The immediate aftermath of a pro-Zubik ruling, said Kaiser policy analyst Laurie Sobel, would be an unknown number of women and dependents losing contraceptive coverage: There’s no way to know which of the nonprofits that complied with the accommodation would take an exemption from the mandate if they could. The nonprofits argue that the government could step in to provide birth control coverage through the Affordable Care Act’s health care exchange.
Q. How might the Scalia vacancy affect the court’s decision?
Antonin Scalia’s death in February means that Hobby Lobby’s five-justice majority is no more. A 4–4 tie would leave the decisions of the different federal appeals courts in effect in those jurisdictions.
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Justices could request that the arguments be reheard next term, but Republicans in the Senate have vowed not to act on President Obama’s nomination of Merrick Garland (or any other candidate to replace Scalia) until a new administration takes over in 2017. Some court watchers speculate that Justice Anthony Kennedy, a frequent swing vote, could make the ruling 5–3 in favor of the government. Although Kennedy agreed with the majority in Hobby Lobby, he wrote a separate concurrence arguing that the majority opinion didn’t have the “breadth and sweep” that dissenters claimed.
Q. The Church of Latter Day Saints and the National Association of Evangelicals filed friend-of-the-court briefs supporting the nonprofits, but wait: Don’t they approve of contraception?
That’s right. The Mormon Church believes that contraception is a private decision for a married couple (the church disavows abortion). A 2010 report by the National Association of Evangelicals found that almost 90 percent of evangelical leaders approved of contraception. Regardless of those stances, the two groups and several other religious organizations say they’re more worried about religious freedom. “It is the Government’s attempt to dilute RFRA — not the issue of contraception — that lends this case broad significance,” the groups wrote in a friend-of-the-court brief. Meanwhile, some religious organizations — such as Catholics for Choice and the American Jewish Committee — filed briefs in support of the government, citing women’s rights and the rights of individuals to make private choices.
Q. Are any other groups interested in the outcome of the ruling?
Yes. LGBT groups in particular are worried that extending the reach of the religious freedom act would give new impetus to religious nonprofits that object to gay marriage. “[We] already anticipate religious employer refusals to making Social Security payments that would protect a same-sex spouse,” Lambda Legal Defense and Educational Fund wrote in a friend-of-the-court brief. Similarly, death-with-dignity groups worry that Catholic hospitals will refuse to transfer patients to facilities more open to physician-assisted suicide.
Elizabeth Wydra, of the Constitutional Accountability Center, said the potential impact on LGBT rights was “something to be concerned about.”
At the same time, Wydra also pointed to Alito’s majority opinion in Hobby Lobby, which specified that the decision was not intended to “provide a shield for employers who might cloak illegal discrimination as a religious practice.”
Q. What’s happened since the oral arguments?
Less than a week after the oral arguments, the court ordered the government and the religious nonprofits to file briefs that address how — and whether — employees could obtain contraceptive coverage without violating the religious nonprofits’ beliefs. The religious nonprofits suggested the government provide incentives for insurance companies to create contraceptive-only plans for their employees to purchase. Employees could learn of the option through the government, which would cut out the nonprofits entirely. On May 16, the court in a unanimous opinion sent the case back to lower courts, saying the briefs showed that there is room to reach an accommodation.
Q. Does the court’s order remanding the case mean religious nonprofits won?
The court made clear that it was not ruling on the merits of the case: “In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest,” the order states. The case heads back to the appeals courts in the Third, Fifth, Tenth, and D. C. circuits to let the religious nonprofits and the government try to work out a compromise. The order expresses high hopes for an agreement: “Both petitioners and the Government now confirm that such an option is feasible.” Although the order gives the religious nonprofits the potential to get out of the contraceptive mandate, Justices Sotomayor and Ginsburg wrote a concurrence emphasizing that it does not “endorse the petitioners’ position” — a caution to those on the side of religious nonprofits who might see the decision as a win.