By Sarah
Smith and Nina
Martin for ProPublica
This
story was co-published with Mother Jones.
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.
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.”
See
our reading list for the other important reproductive
rights case at the Supreme Court this term, Whole Woman’s Health v.
Hellerstedt.
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