{"id":2047,"date":"2016-02-01T21:54:20","date_gmt":"2016-02-01T21:54:20","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2047"},"modified":"2016-02-01T21:54:20","modified_gmt":"2016-02-01T21:54:20","slug":"zubik-v-burwell-the-contraceptive-coverage-mandate-returns-to-the-supreme-court","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2016\/02\/01\/zubik-v-burwell-the-contraceptive-coverage-mandate-returns-to-the-supreme-court\/","title":{"rendered":"Zubik v. Burwell: The Contraceptive Coverage Mandate Returns to the Supreme Court"},"content":{"rendered":"ACA and RFRA: Setting the Scene<\/span><\/strong>\n\nThe Affordable Care Act<\/a> (ACA, commonly known as Obamacare) requires employers with 50 or more employees to provide health insurance. This insurance must cover certain contraceptive methods, including the so-called \u201cmorning after\u201d pill. However, regulations under the ACA allow non-profit religious organizations<\/a> to opt-out of providing contraceptive coverage to their employees by filing a notice of their religious objection to the Department of Health and Human Services (HHS) or<\/span><\/strong> the insurer or third-party administrator (TPA) of their health plan. Following an organization\u2019s opt-out, the ACA will then require the insurer or TPA to provide separately for contraceptive coverage<\/a> for the objecting employer\u2019s employees.\n\nThe Religious Freedom Restoration Act<\/a> (RFRA) states that the government may not substantially burden a person\u2019s exercise of religion unless the government satisfies the compelling interest test. The government satisfies the compelling interest test where (1) the burden\u2019s application is in furtherance of a compelling government interest,<\/span><\/strong> and such application is (2) the least restrictive means<\/span><\/strong> of furthering that compelling interest.\n\nIn Burwell v. Hobby Lobby<\/em><\/a> the Court ruled that closely-held corporations are \u201cpersons\u201d for purposes of RFRA, therefore the government is not challenging<\/a> the assertion that nonprofit religious organizations are \u201cpersons\u201d who can exercise religion. According to Hobby Lobby<\/em>, a person\u2019s exercise of religion is substantially burdened where the person demonstrates that their sincerely held religious beliefs prohibit compliance with the law. Thus, \u201ca religious objector is entitled to \u201cdraw a line\u201d regarding the conduct\u201d prohibited by his religion, and as they do so sincerely, the Court will not question whether the line is logical.\n\nUnder the First Amendment<\/span>, a law that is not neutral as to religion must satisfy the compelling interest test. In Church of Lukumi v. City of Hialeh<\/em><\/a>, the Supreme Court held that a law is not neutral as to religion if it selectively imposes burdens on religious groups, and <\/strong>the law does not impose those burdens on similar nonreligious activity. RFRA reaches further by requiring neutral, federal statutes<\/span> (such as the ACA) to satisfy the compelling interest test if<\/em> they substantially burden a person\u2019s religious exercise.\n\n \n\nZubik<\/span><\/em><\/strong>: The Present Dilemma<\/span><\/strong>\n\n <\/span><\/strong>\n\nIn a series of US Circuit Court cases, religious organizations argue that opting out of providing coverage, while filing notice, violates their religious beliefs because such notification would trigger<\/em> provision of coverage by the TPA or insurer. Thus, they feel that opting out would nonetheless make them complicit<\/span> <\/strong>in providing contraceptives to their employees. Many<\/a> Circuit Courts have rejected this argument. However, in September 2015, the 8th Circuit held for the religious organizations. In November 2015, the Supreme Court granted certiorari for Zubik v. Burwell<\/em> to resolve this split among the circuits.\n\nIn Sharpe Holdings v. HHS<\/em><\/a>, the 8th<\/sup> Circuit reasoned (along the lines of Hobby Lobby<\/em>) that filing notice must constitute a substantial burden on sincerely held beliefs because filing that notice would make them complicit in providing contraceptives and destroying fertilized eggs, and the court would not second-guess that belief\u2019s logic. The court concluded that the religious organizations must prevail because opting-out by filing notice is not the least restrictive means of achieving the Government\u2019s interests\u2014the court found that the Government, instead of an insurer or TPA, could pay for the contraceptives through reimbursements, tax credits, etc. Indeed, Sharpe <\/em>held that the Government\u2019s assumption of the cost is \u201c[t]he most straightforward way of doing this.\u201d\n\nHowever, the D.C. Circuit<\/a> would not permit the Government\u2019s assumption of the cost because such an approach does not further one of the ACA\u2019s compelling interests: seamless contraceptive coverage to employees. The D.C. Circuit reasoned that, if the employer opts out by filing notice, the employee seamlessly receives coverage from \u201cthe same insurers and TPAs that are \u201calready paying for [their] other medical and pharmacy services.\u201d\u201d However, if the Government were to assume the contraceptive costs for an uncovered employee, for example through reimbursements, then the employees are burdened (and coverage is no longer seamless) because they must (1) pay up-front and await reimbursement or<\/span><\/strong> (2) \u201ctake additional steps to obtain contraceptive coverage elsewhere.\u201d\n\nAccounting for Third-Party Harms: The Proposed Resolution<\/span><\/strong>\n\n <\/span><\/strong>\n\nThe goal of this post is not to predict the Supreme Court\u2019s ruling in Zubik<\/em>. Instead, the goal is to advocate for a shift in RFRA\u2019s interpretation. In deciding whether a religious organization is substantially burdened, instead of (A) merely deferring to sincere religious beliefs or (B) asking a court to examine the logic of those religious beliefs, the Supreme Court should (C) account for harms to third-parties in Zubik<\/em> in order to prevent the disappearance of the substantial burden requirement<\/span>.\n\nIf courts, in nearly all RFRA cases, deferred to a claimant\u2019s assertion that the government substantially burdened his sincerely-held religious beliefs, this would \u201crob[] RFRA of its meaning.\u201d<\/a> According to Professor Caroline Corbin<\/a>, \u201c[t]o simply assume a substantial burden whenever someone claims one exists\u2026essentially reads out [this] requirement.\u201d\n\nCountless unsettling hypotheticals jump to mind: could a landlord refuse to rent to unmarried couples<\/a> based on his religious belief that \u201cfacilitating [unmarried] cohabitation in any way is tantamount to facilitating sin[?]\u201d Could an employee who requested time-off for a religious holiday successfully claim that he is substantially burdened by his employer hiring a replacement worker for that holiday, since the claimant\u2019s request triggered<\/em> that hiring?\n\nIf the Court rules for the religious organizations in Zubik<\/em>, then courts seemingly must apply the compelling interest test to both hypotheticals. Moreover, what happens if the Court adopts the reasoning in Sharpe<\/em>? If courts hold that where the Government\u2019s assumption of the cost furthers the lawmakers\u2019 interests then the government cannot meet its burden, how often will anything satisfy the compelling interest test?\n\nThe substantial burden requirement cannot be so insubstantial. As noted in US v. Lee<\/em><\/a>, <\/em>in order to preserve important government functions, certain claims for religious exemptions from neutral laws must<\/em> fail. In Lee<\/em>, the Court held that requiring an Amish employer to pay Social Security taxes did not violate the Free Exercise Clause because \u201c[t]he tax system could not function if [religious] denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.\u201d\n\nTo preserve neutral government laws, courts cannot interpret RFRA as a blank check for religious exemptions. Without a heightened substantial burden requirement in RFRA, as the 5th<\/sup> Circuit<\/a> warned, \u201cthe possibilities\u201d for religious exemptions to neutrally applicable laws \u201care endless, but we doubt Congress, in enacting RFRA, intended for them to be.\u201d Indeed, during its enactment, House members<\/a> called for RFRA to represent a \u201cshield to protect religious liberty\u201d and not be used, for example through religious exemptions to antidiscrimination laws, \u201cas a sword to attack the rights of\u2026unmarried couples, single parents, [and] lesbians and gays.\u201d\n\nCourts can avoid near-constant satisfaction of the substantial burden requirement if they rule that no burden is \u201csubstantial\u201d if granting an exception for religious individuals would impose undue harm on third parties<\/span>. In this way, courts interpreting RFRA would only find a substantial burden if (1) the claimant\u2019s sincere religious belief would be infringed upon by the government and (2) relieving such infringement would not impose undue harm on a third-party. Indeed, the Supreme Court previously (in the context of the First Amendment), in Caldor<\/em><\/a> and Cutter<\/em><\/a>, prohibited the government from privileging religious conduct at the expense of third parties who do not benefit from the religious exemptions.\n\nAside from simply reining in the Court\u2019s interpretation of RFRA, the Court should consider third-party harms as a matter of fundamental fairness. If the Court ruled that the Government should assume the cost of contraceptive coverage, by providing reimbursements to uncovered individuals, then employees would be harmed by paying out-of-pocket for contraceptives as they await their Government\u2019s reimbursement (and the harm from this approach is worsened where individuals lack the funds to pay up-front). Admittedly, achieving a \u201csensible balance<\/a>\u201d between religious and governmental interests is often a difficult process since neither interest can be exactly quantified, but exempting religious individuals from providing neutral, obligatory coverage while the rest of society covers those costs does not seem like any balance<\/em> at all.\n\n ","protected":false},"excerpt":{"rendered":"

ACA and RFRA: Setting the Scene The Affordable Care Act (ACA, commonly known as Obamacare) requires employers with 50 or more employees to provide health insurance. This insurance must cover certain contraceptive methods, including the so-called \u201cmorning after\u201d pill. However, regulations under the ACA allow non-profit religious organizations to opt-out of providing contraceptive coverage to…<\/p>\n","protected":false},"author":1,"featured_media":2048,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[18,19],"tags":[],"class_list":["post-2047","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-feature","category-feature-img"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2047","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2047"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2047\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2048"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2047"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2047"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2047"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}