Who is at odds and why?
Under the Affordable Care Act, private health-insurance plans must offer contraception for women at no cost. Thirty-seven religiously affiliated higher-education institutions have sued the federal government, saying it is forcing them to violate their religious beliefs.
What are the legal issues at play?
Under the Religious Freedom Restoration Act, the colleges have to show that their exercise of religion is substantially burdened by the contraception requirement. If the court agrees with that argument, the government must then show that it has a compelling interest in requiring contraception coverage and that it has used the least-restrictive means to enforce that interest.
The colleges want to be exempt from having to provide coverage. The government, instead, allows colleges and others who object to offering contraception a way to do so at no cost to the employer. Objectors can notify their insurer, third-party administrator, or the Department of Health and Human Services, and the government then works directly with the insurance provider or plan administrator to offer the coverage. The colleges and other religiously affiliated nonprofits are not happy with that accommodation, arguing that it still makes them complicit in offering contraception, even if indirectly.
Where are we now?
Many of the cases have hit a dead end. Seven of the eight U.S. appellate courts that have heard the cases have found in favor of the government, saying that colleges and other nonprofits have been adequately accommodated under the Religious Freedom Restoration Act. The U.S. Court of Appeals for the Eighth Circuit, however, agreed with the plaintiffs. The U.S. Supreme Court has decided to review the issue. It combined seven cases that include several colleges and other nonprofits into Zubik v. Burwell and will hear the case this week.
What’s at stake?
About 3 percent of all religiously affiliated nonprofits have sought the current accommodation, in which contraception coverage is provided but at no cost to them. If the Supreme Court sides with the nonprofit groups and rules that they may be fully exempt from covering contraception, other religiously affiliated colleges and groups could stop offering that coverage to their employees (and students), too. If the Supreme Court agrees with the government, the current situation would stand, and the colleges and others could continue requesting the accommodation. If there is a split decision — with Antonin Scalia’s death the court is now divided evenly between liberals and conservatives — the lower court rulings would stand.
Sources: The Becket Fund for Religious Liberty; The Henry J. Kaiser Family Foundation
