Faculty Blog: Zubik v. Burwell: The Supreme Court Punts on Religious Nonprofits’ Challenge to the Affordable Care Act Contraceptive Coverage Opt-Out


Last month, the U.S. Supreme Court declined to weigh in on the merits of religious nonprofit organizations’ challenge to the Patient Protection and Affordable Care Act’s contraceptive coverage religious opt-out regulations. The regulations allow religious nonprofits to avoid the legal responsibility of covering contraceptives in their health insurance plans by providing notice that they object to doing so on religious grounds. The petitioners in the cases consolidated in Zubik v. Burwell claimed that furnishing this notice imposed a substantial burden on their religious exercise. In a per curiam opinion, the Court noted that supplemental briefing that addressed whether contraceptive coverage could be provided to the petitioners’ employees without the required notice had revealed the feasibility of such an option. The Court remanded the cases for investigation of this option, without making a decision on the plaintiffs’ Religious Freedom Restoration Act (RFRA) claim.

RFRA provides that the government “shall not substantially burden a person’s exercise of religion” unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The religious nonprofit organizations involved in the Zubik litigation relied on RFRA to challenge regulations aimed at accommodating religious objections to covering contraceptive services under the ACA’s preventive health services mandate. Some of the Zubik petitioners, such as the Little Sisters of the Poor Home for the Aged, object to all forms of contraception; others, such as East Texas Baptist University, object only to contraceptive methods that may prevent implantation of a fertilized egg. The challenged regulations allow religious nonprofits to opt out of providing or paying for contraceptive coverage by delivering a form to their insurer or by sending notification to the Department of Health and Human Services. Once a religious nonprofit opts out, the responsibility for providing contraceptive coverage rests solely with a third party, such as the nonprofit’s insurer.

The Zubik petitioners filed multiple suits arguing that delivering notice of their objection pursuant to the regulations imposed a substantial burden on their religious exercise. Thus, rather than challenging the obligation to provide contraceptive coverage as for-profit corporations had in Burwell v. Hobby Lobby Stores, Inc., the petitioners challenged the accommodation that allowed them to get out of providing contraceptive coverage without penalty. The four courts of appeals that heard these challenges (including the Third Circuit, the D.C. Circuit, the Fifth Circuit, and the Tenth Circuit) rejected the claim that the accommodation regulations imposed a substantial burden on religious exercise. The U.S. Supreme Court granted the resulting petitions for writs of certiorari in November 2015.

Following oral argument, the Court requested supplemental briefing to “address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

After evaluating the supplemental briefs, the Court concluded that the petitioners and the government had confirmed that an option that would not require the opt-out notice is “feasible.” Consequently, the Court remanded the cases to the relevant court 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.’”

The Court emphasized that no view was being expressed on the merits of the petitioners’ RFRA claim. Specifically, the Court was not answering the key questions with respect to the challenged regulations: whether the government had substantially burdened the petitioners’ religious exercise, whether the government has a compelling interest, or whether the regulations are the least restrictive means of furthering that interest.

A concurring opinion by Justice Sotomayor, in which Justice Ginsburg joined, reiterated this point and cautioned the courts of appeals against ignoring the Court’s disclaimer. The Court’s opinion also made it clear that the government had its blessing to take action to ensure that women covered by the petitioners’ health plans “‘obtain, without cost, the full range of FDA approved contraceptives.’” (quoting Wheaton College v. Burwell). Because the government was well aware of the petitioners’ belief that they met the requirements for a religious accommodation, the government could not impose taxes or penalties for their failure to provide the opt-out notice.

The immediate practical result of the decision was to allow the government to move forward with ensuring access to the full preventive health services coverage that the ACA is meant to provide, while freeing the Zubik petitioners from the risk of penalties for their refusal to comply with the regulations. As the Tenth Circuit has explained, “a religious accommodation tries to reconcile religious liberty with the rule of law.” Because of the Supreme Court’s failure to rule on the merits of the Zubik petitioners’ RFRA claim, whether the accommodation regulations strike the proper balance between protecting religious exercise and ensuring compliance with the law remains an open question.

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