Does filling out a form burden religious beliefs? We’re about to find out. On November 6, the Supreme Court agreed to review a group of seven cases (led by No. 14-1418, Zubik v. Burwell) brought by religious non-profit employers. The cases concern whether the contraception mandate in the Affordable Care Act (ACA) violates religious freedom under the Religious Freedom Restoration Act (RFRA).
These cases are a follow-up to Burwell v. Hobby Lobby. There, the Supreme Court held that RFRA allows closely-held for-profit corporations to avoid the ACA’s requirement that they provide insurance coverage for certain contraceptives. Subsequently, the Supreme Court vacated a Seventh Circuit ruling denying a preliminary injunction requested by the University of Notre Dame against the ACA’s contraceptive mandate. The Court ordered the appellate court to evaluate the appropriateness of the injunction in light of Hobby Lobby.
The issue in the Notre Dame matter, and the issue in the cases for which certiorari has now been granted, is whether the contraceptive mandate violates RFRA by requiring religious organization seeking to be excused from providing contraceptive coverage to notify the government in writing of their objection. Under the ACA, if a religious employer objects to providing contraceptive coverage it must submit an objection form to the government. The government then coordinates with the insurance carrier (or third-party administrator) to provide coverage without payment by (or involvement from) the objecting organization.
The religious organizations in these suits argue that requiring them to take an affirmative step (notifying the government of their objection) if they decline to provide contraceptive coverage on religious grounds, violates RFRA. The organizations contend that even though they themselves are not paying for the contraceptive coverage, their direct involvement in the process (by filling out the objection form) still makes them complicit in providing contraception (a practice barred by their sincerely held religious beliefs).
The government in contrast argues that the objection requirement does not violate RFRA, as it the least restrictive means of furthering the government’s substantial interest (the contraceptive mandate).
Until September, every Courts of Appeals to consider the question of whether the mandate improperly burdened the organizations’ beliefs ruled in favor of the government. On September 17, the Eight Circuit broke ranks and held (in a case not yet before the Supreme Court) that requiring the submission of an objection form substantially burdened religious freedom and was not the least restrictive way of furthering the government’s interest in making contraception available. Dordt Coll. v. Burwell, 801 F.3d 946, 950 (8th Cir. 2015).
Oral argument in Zubik has not yet been scheduled. The forthcoming decision will be significant for employers and plan sponsors, as it will provide insight into what limits the Court is willing to place on a claim of religious freedom by entities (non-profit or otherwise) from generally applicable laws.