The lawsuit Zubik v. Burwell, argued on March 23 in the 8-member Supreme Court, involves a small religious minority locked in conflict with, once again, the Affordable Care Act. The suit consolidates seven cases from around the country to launch an attack on the law’s requirement that employers offer no-cost birth control to female employees through their insurance packages.
Among the most well known plaintiffs in the seven cases of Zubik are the Little Sisters of the Poor, a group of Catholic nuns who run nursing homes in Maryland and Colorado. Their involvement in the case has led to hyperbolic claims from conservatives that Obama is ‘forcing’ nuns to pay for birth control against their will: “The government has lots of ways to deliver contraceptives to people — it doesn’t need to force nuns to participate,” said Mark Rienzi, Senior Counsel for the Becket Fund, a pro-life legal group.
Contrary to these claims, the ACA’s requirement does not technically include all employers. Churches and houses of worship are entirely exempt, while religiously affiliated nonprofits, like Catholic hospitals, are exempt as long as they fill out a two-page form informing the government of their objections. When they do so, they are relieved of any further involvement: after the Department of Health and Human Services receives the form, they contact the relevant insurance company and instruct it to provide the contraceptives at no cost to employees. The employer is no longer “responsible” for access to birth control because they do not cover the cost — the government does. The 2014 decision Burwell v. Hobby Lobby Stores, Inc., granted the same “opt-out” choice to religious for-profit corporations who similarly object to the requirement.
Despite this accommodation, the groups involved in Zubik raise yet another religious objection, claiming that the simple act of notifying the government of their refusal inevitably leads to no-cost contraception, thus making them complicit in providing birth control and violating their religious principles. Their argument implies that these principles are more important than the right of their employees to obtain access to no-cost contraception. They are essentially claiming that the spiritual and moral harms inflicted upon them by filling out a two-page form are far worse than the physical and economic harms inflicted upon their employees by not having access to birth control.
Although these harms are certainly important to some, claims based on physical and economic harms are far easier to protest successfully, according to Deborah Stone, a research professor of government at Dartmouth College and author of Policy Paradox. This makes sense intuitively: a woman who cannot easily access free birth control is more likely to become pregnant, which is arguably a far worse scenario (if the pregnancy is indeed unwanted) than a nun filling out a form in which she opts out of the ACA mandate and thus enables the insurance company to cover the cost.
The religious groups sued under the Religious Freedom Restoration Act, which prohibits laws that “substantially burden” religious exercise unless they further a compelling state interest that cannot be achieved by less restrictive means. In a New York Times op-ed, Constance Veit of the Little Sisters of the Poor wrote, “What Health and Human Services is calling an ‘opt-out’ is really an ‘opt-in’ — a permission slip where we authorize the use of our religious health plan to offer services that violate our beliefs and waive our protection under federal civil rights laws.”
Veit claims this “permission slip” serves as the “substantial burden” to religious exercise specified in the Religious Freedom Restoration Act, while critics argue that the opt-out poses no such burden. At oral arguments on March 23, the justices struggled to find less restrictive means that would satisfy the groups’ complaints.
In a conversation with Noel Francisco, a lawyer for some of the plaintiffs, Justice Elena Kagan asked, “Is there any accommodation that the government could offer that would in fact result in women employees of your clients getting health care as part of an employer-based plan [and] getting contraceptive coverage?”
Mr. Francisco responded, “We’ve not been offered that kind of alternative to consider.”
However, one could easily argue that the opt-out form is already the perfect alternative. Religious groups do not have to pay for birth control while employees can still obtain contraception as part of their plan; any alternative would likely result in female employees encountering barriers in obtaining birth control. For example, Justices Roberts and Alito suggested an alternative in which the government provides a separate, contraception-only plan for women on the exchanges, an option that the plaintiffs approved. However, as Solicitor General Donald Verrilli explained, this option would totally defeat the government’s purpose by leading to extreme difficulty and confusion for the women seeking coverage, insurers, and the government. The employees’ access to contraception could become completely compromised.
The Supreme Court responded by asking all groups involved to file supplemental briefs in an unprecedented order on Tuesday, March 29. The Court has essentially asked the groups to brainstorm a solution in which employees can still access no-cost contraception, but employers do not have to submit an “opt-out” form.
In the closing paragraph of the order, the Court outlines its own hypothetical solution: when religious non-profits contract to provide health insurance for their employees, they can simply inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object. The insurance company would then “separately notify” the employees that they will provide cost-free coverage.
If the religious non-profits reject such a solution, then it becomes clear that they object to the “independent conduct of third parties,” notes Justice Kennedy, the swing vote in this case. In other words, if they cannot even accept a scenario with a minimal level of involvement — the least amount of “burden” possible — then they only seek to control the behavior of their employees.
Critics argue that if the nuns were to get their way, this case could lead down a slippery slope: if a few religious groups successfully argue that the smallest of actions — filling out a 2 page form in this case — poses a burden, then almost anything could qualify as a “burden.” This could impede future actions taken by the government to further the public’s interest.
And, in truth, the nuns’ objection simply cannot be entertained. Upholding religious freedom while simultaneously best serving the public may be a balancing act, but to side with the religious non-profits — who currently do not have to pay a cent for birth control — would be to severely tip the scale in favor of religious freedom. According to the Center for American Progress, at stake is the “autonomy, dignity, and religious liberty of women” who use birth control. Rea Carey, executive director of the National Gay and Lesbian Task Force, speculates that a victory for the plaintiffs could “open the door to employers refusing to buy plans that cover PrEP,” a highly effective medication that many gay and bisexual men take to prevent HIV. In other words, anybody could refuse to abide by a law on the grounds of a “religious belief.” A government that grants such a sweeping concession could not be very effective — religious freedom would trump all others.