As part of its requirement that non-grandfathered group health plans provide benefits for certain preventive care without cost sharing, the Affordable Care Act (“ACA”) requires these plans to cover at least one form of women’s contraception in each of the 18 methods identified by the Food and Drug Administration.  The U.S. Supreme Court previously ruled in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) that the contraceptive mandate was invalid with respect to for-profit, closely held corporations whose owners objected to providing the insurance coverage on religious grounds.

Shifting its focus to non-profit organizations, the Supreme Court has now agreed to hear arguments on whether the application of these requirements to non-profitorganizations with faith-based objections violates the Religious Freedom Restoration Act (“RFRA”) notwithstanding a regulatory “accommodation” provided to these organizations.  See Order Granting Certiorari, Zubik v. Burwell (No. 14-1418); Priests for Life v. Burwell (No. 14-1453); Roman Catholic Archbishop of Washington v. Burwell (14-1505); Little Sisters of the Poor Home for the Aged v. Burwell (15-105), Southern Nazarene University v. Burwell; (15-119); Geneva College v. Burwell (15-191); East Texas Baptist University v. Burwell (15-35).

The “accommodation” allows non-profit organizations holding themselves out as religious organizations to avoid covering contraception under their health plans if, on account of religious objections, they oppose providing the coverage.  In order to avail itself of the accommodation, an organization must notify its insurer or third party administrator of its eligibility for the accommodation or notify the federal government of its religious objection and provide information so that the government can set up the coverage with the insurer or third party administrator.  Once this occurs, the insurer or third party administrator must provide coverage for the women’s contraceptive services at no cost to the participant/dependent or the religious organization.[1]

At issue in the seven cases in which the Supreme Court will hear argument, is whether the notice requirement to elect an “accommodation” to the contraceptive coverage requirement substantially burdens the nonprofits’ religious exercise in violation of RFRA, whether the government has a compelling interest, and whether there is a less restrictive way to achieve the goal of providing women free contraceptive coverage.  The Administration has argued that this accommodation takes the entities themselves out of having to provide coverage in violation of their beliefs, while still allowing the government to meet its interest in providing access to free birth control.  Several circuit courts had aligned in agreeing with the Administration’s view.  In September, however, the Eighth Circuit issued a contrary ruling and held that, although the interest in universal free contraception was legitimate, the government did not meet this interest by the “least restrictive means” as required by RFRA.  The Eighth Circuit listed less restrictive alternatives to the current accommodation such as the government providing birth control itself; making it available through the ACA insurance marketplaces; or providing it through health centers, clinics, and hospitals.

It is anticipated that the Supreme Court will now resolve the circuit split.[2] The cases are expected to be argued in March, with a decision likely being issued in late June.