Zubik v. Burwell, et al.


  1. Does the U.S. Department of Health and Human Services’ self-certification requirement for objecting religious non-profits under the Affordable Care Act (“ACA”) violate the rights of these non-profits to freely exercise their religion?
  2. Would the government satisfy the Court’s test for overriding the Religious Freedom Restoration Act (“RFRA”) where it admits that its alternative scheme may not fulfill the regulatory objective of providing contraceptives at no cost to objecting employers?
Oral argument: 
March 23, 2016


The Supreme Court will decide whether requiring objecting religious non-profit organizations to sign a waiver allowing employees to receive health coverage, including contraception and abortion-inducing drugs from third parties, violates their rights under the Religious Freedom Restoration Act (“RFRA”). Petitioners, a group of Catholic non-profits (the “Catholic groups”), argue that the requirement forces them to offer health coverage to their employees in a manner inconsistent with the Catholic groups’ faith. The Catholic groups further argue that the requirement has been imposed without proof that the mandated coverage cannot be achieved through alternative means. Sylvia Burwell, the secretary of Health and Human Services, and the U.S. Department of Health and Human Services, counter that the objections of these religious organizations are not a cognizable burden under RFRA. Furthermore, their refusing to sign the waiver will frustrate the government’s compelling interest in protecting the health of all women, including female employees of Catholic groups. This decision could expand the religious exemption to the requirements of the Affordable Care Act, and will further define the limits of the First Amendment protections afforded under RFRA. 

Questions as Framed for the Court by the Parties 

1.  Does the Government violate the Religious Freedom Restoration Act (“RFRA”) by forcing objecting religious nonprofit organizations to comply with the HHS contraceptive mandate under an alternative regulatory scheme that requires these organizations to act in violation of their sincerely held religious beliefs?

2.  Can the Government satisfy RFRA’s demanding test for overriding sincerely held religious objections in circumstances where the Government itself admits that overriding the religious objection may not fulfill its regulatory objective—namely, the provision of no-cost contraceptives to objectors’ employees?


The Affordable Care Act (“ACA”), passed in 2010, requires health insurers to cover preventive care and screenings for women at no cost according to guidelines established by the U.S. Department of Health and Human Services (“HHS”). Geneva College et al. v. Secretary of the Department of Health and Human Services et al. at 12–13The regulations recognize an exemption from coverage for contraception and abortion-inducing drugs for religious employers. See id. at 14. For religious non-profit organizations, however, the regulations provide for an accommodation in which objecting religious non-profit organizations may opt out of the coverage by following a process of self-certification. See id. at 14–15. Following the self-certification process, employees of these religious non-profit organizations will gain access to contraception without cost sharing through alternate mechanisms under the ACA. See id. at 15.

Two separate groups of appellees, Geneva College, and a Coalition of Catholic Dioceses and Catholic non-profit organizations, challenged the ACA’s contraception requirements and the accommodation for non-profit organizations. They argued that the requirements posed a substantial burden on the exercise of their religion. Geneva College at 18. The first appellee, the Geneva College, is a non-profit tertiary institution established by the Reformed Presbyterian Church of North AmericaSee id. at 20–21. The District Court of the Western District of Pennsylvania granted Geneva College’s motion for a preliminary injunction regarding its student health plans, and enjoined the government and the school’s student health insurance broker from providing abortion-inducing drugs that are against the college’s religious beliefs. Id. In a second ruling, the district court further enjoined Geneva College’s employee health insurance plan broker from providing abortion-inducing drugs to employees of the college, and found that the self-certification process forced Geneva to facilitate access to religiously objectionable services. See id. at 23.

The second group of appellees appears in Zubik v. Burwell and consists of a group of Catholic Dioceses and their subsidiary religious non-profit organizations. Geneva College at 24. Similar to the Geneva College case, the District Court of the Western District of Pennsylvania  granted a preliminary injunction in Zubik and later converted that injunction into a permanent injunction on December 20, 2013. See id. at 25. The district court concluded that the HHS’s accommodation required the Dioceses and non-profits to provide documentation to facilitate what those groups believe to be an immoral purpose. Id. Additionally, the district court held that the distinction between the exemption granted to the Catholic Church and the accommodation granted to the Church’s religious non-profits presented a substantial burden, as it had the effect of dividing the Church’s activities from the place of worship. See id. at 26.

The government, in both cases, argued that the district court’s rulings were incorrect, because the submission of the form required by the accommodation is not burdensome and mandates third-party insurers, and not the religious non-profits themselves, to provide contraception coverage. The Court of Appeals for the Third Circuit reversed the district court’s order granting the injunctions in both cases, because the appellees failed to show a likelihood of success on the merits of their RFRA claims. See id. at 48. In the court’s view, the HHS’s accommodation requirements do not represent a substantial burden on the religious exercise of the objecting groups. See id.

The various petitioners each filed a writ of certiorari; the Supreme Court granted cert in November 2015. See Brief for Petitioners, East Texas Baptist University et al. at 5.


Petitioners, a consolidated group of Catholic non-profits (the “Catholic groups”), argue that the government’s existing religious exception and alternative measures are a substantial burden on the exercise of their religion. See Brief for Petitioners, East Texas Baptist University et al. at 20. Sylvia Burwell, Secretary of Health and Human Services, and the U.S. Department of Human and Health Services (hereinafter, “the government”), counter that the exception respects the exercise of religion while serving the government’s compelling interest by the least restrictive means available. See Brief for Respondents, Sylvia Burwell et al. at 27–28.


The Catholic groups claim that the “exercise of religion,” as described by RFRA and recognized by the Court, is construed broadly and includes a wide range of conduct. See Brief for Petitioners, David Zubik et al. at 28–29. Specifically, the Catholic groups first argue that they exercise their religion by offering health insurance to their employees that do not cover abortion-inducing drugs, contraceptives, or sterilization. See id. at 35–36. Secondly, the Catholic groups contend that they would also exercise their religion by refusing to sign the “self-certification” or “notification” document that would allow the Catholic groups’ health insurance companies to provide such coverage to the Catholic groups’ employees in contradiction with their religions beliefs. See id. at 37. The Catholic groups also argue that the government substantially burdens both of these religious exercises by threatening the Catholic groups with severe penalties if they refuse to sign the documents or offer health insurance with access to abortion-inducing drugs, contraceptives, and sterilization. See id. at 38–39.

The government argues that the Catholic groups’ interpretation of “exercise of religion” under RFRA is incredibly broad and contradicts the objective limits that the Supreme Court has created. See Brief for Respondents, Sylvia Burwell et al. at 42–44. The government claims that the Catholic groups are not substantially burdened merely because the government spends its money or arranges its own affairs in ways the Catholic groups find objectionable. See id. at 44. According to the government, granting the Catholic groups’ broad interpretation will be dangerous because different religious groups could consider a wide range of governmental conduct to be deeply offensive. See id. at 43. The government contends that a zone of autonomy for religious exercise does exist, but that a religious group cannot dictate the government’s internal activities out of mere religious objections. See id. at 44.


The Catholic groups argue that the government and the lower courts have mischaracterized the government’s regulatory scheme as providing the Catholic groups with an accommodation in the form of an “opt-out.” See Brief for Petitioners at 44. According to the Catholic groups, the government’s accommodation would still force the Catholic groups to offer health plans that violate their religious beliefs because employees of these religious organizations would nonetheless receive health coverage that the organizations believe are objectionable through the Catholic groups' action of completing the self-certification process. See id. 

The government counters the Catholic groups’ claims that these religious organizations have the right to feel morally responsible for the government’s actions in providing the Catholic groups’ employees with access to abortion-inducing drugs, contraceptives, and sterilization; the government contends that the groups' feeling morally responsible is different from establishing a burden on their exercise of religion that is recognized under RFRA. See Brief for Respondents  at 37. The government asserts that the Catholic groups have the right to opt out of the contraceptive-coverage through a formal process that allows the government to hold the sole responsibility of providing the coverage to the Catholic groups’ employees. See id. at 35–36. In other words, the government maintains that it will relieve the Catholic groups of any legal obligation if they choose to opt out and the government would then exercise its own independent obligation to provide the coverage. See id. at 38.


The Catholic groups assert that Congress did not mandate contraceptive coverage and instead drafted the ACA to require only “preventive care.” See Brief for Petitioners at 62. The Catholic groups highlight the fact that the contraceptive mandate is the result of administrative rulemaking rather than policy judgments made by Congress. See id. The Catholic groups argue that in the absence of a policy judgment made by Congress, a mere administrative decision requiring contraceptive coverage cannot override religious liberty afforded under RFRA. See id. at 63.

On the other hand, the government argues that it has a compelling interest in ensuring that women receive full health coverage, including contraceptive coverage. See Brief for Respondents at 55. According to the government, contraceptive coverage is an essential component of women’s health care because contraceptive coverage enables women to avoid various health problems, such as those that arise from unintended pregnancies. See id. Moreover, the government contends that providing contraceptive coverage also furthers the government's compelling interest in ensuring that women have equal health coverage. See id. at 58. According to the government, a health care package that fails to include contraceptive coverage would not give women access to the full range of health care services available. See id.


The Catholic groups argue that the government cannot claim that it has a compelling interest because the government already exempts “houses of worship” from providing contraceptive coverage. See Brief for Petitioners at 55. According to the Catholic groups, these “houses of worship” are indistinguishable from the Catholic groups, which are also comprised of religious organizations. See id. The Catholic groups further contend that the government’s compelling interest argument is also undermined by the fact that the government allows exemptions through “grandfathered” health plans. See id. at 55–56. These “grandfather” exemptions allowed more than forty-four million people to maintain their existing healthcare coverage that they had obtained prior to the enactment of the ACA. See id. at 60–61. 

The government agrees that not every employer is currently required to provide contraceptive coverage. See Brief for Respondents at 62. The government, however, claims that even with exemptions, the government still has a compelling interest. See id. The government asserts that it provides numerous tax exemptions, exemptions from draft registration, and Title VII discrimination exemptions to employers with fewer than fifteen employees, yet no one would suggest that raising tax revenue, raising an army, and combatting employment discrimination are not compelling interests. See id. Lastly, the government counters the Catholic groups’ arguments by pointing to the false assumption that individuals who were able to maintain their health insurance package through a grandfathering provision lack contraceptive coverage. See id. at 63. The government maintains that contraceptive coverage had become standard practice for most private insurance packages and that twenty-eight states had required it by law, so even those who were able to keep their health insurance plans through the grandfathering provision have contraceptive coverage. See id. at 64.


The Catholic groups claim that the government could provide contraceptive coverage independent of the health plans offered through the Catholic groups’ institutions. See Brief for Petitioners at 73–74. The Catholic groups contend that the mandate is one of the many different ways that the government can provide contraceptives to women, including offering women the opportunity to enroll in separate, contraceptive-only health plans through the ACA. See id. at 74. The Catholic groups further argue that the government would have to adopt only minor adjustments to the massive ACA system in order to provide independent contraceptive coverage. See id. at 76.

The government counters by stating that the compelling interest in securing full and equal health coverage for women requires contraceptive coverage without financial, administrative, or logistical burdens. See Brief for Respondents at 73. The government argues that using a separate system to provide contraceptive coverage, as opposed to using the Catholic groups' insurers, will deter women from receiving full and equal health coverage. See id. at 76. Moreover, the government asserts that providing independent contraceptive coverage would not be less restrictive because it would require new legislation and impose employers’ religious beliefs on its female employees. See id. at 77–78. 


The Supreme Court’s decision in this case may redefine what constitutes a religious burden and establish the limits on the applicability of the ACA.


Fifty Catholic theologians and ethicists writing in support of the Catholic groups argue that complying with the ACA mandate would be a violation of Catholic moral theology and ethics. See Brief of Amici Curiae 50 Catholic Theologians and Ethicists, in Support of Petitioners at 2. The Catholic theologians contend that compliance will render them complicit in the mandate and imply approval of the provision of abortion-inducing drugs and contraceptive services. See id. at 25. Additionally, over two hundred members of Congress, in support of the Catholic groups, argue that the government's petition requires the Court to make a determination on what constitutes reasonable or sincere beliefs. See Brief of Amici Curiae 207 Members of Congress, in Support of Petitioners at 26.

On the contrary, the American Humanist Association, in support of the government, argues that although RFRA allows greater freedom of religion, RFRA does not imply that religious theology should dictate public policy. It suggests the creation of exceptions for religious exercise on issues of public policy will eventually result in the creation of a theocracy and not a democracy. See Brief of Amicus Curiae American Humanist Association, in Support of Respondents at 21–25. Furthermore, 240 students, faculty, and staff at religiously affiliated universities, in support of the government, argue that most religiously affiliated schools have diverse student bodies and faculties that are not limited to a particular faith and do not necessarily share the school’s doctrinal views on contraception. See Brief of Amici Curiae 240 Students, Faculty, and Staff at Religiously Affiliated Universities, in Support of Respondents at 11–12. As such, the need for contraceptive coverage for women at these religiously affiliated universities may be considered as compelling as providing contraception to the general public. See id.


The Concerned Women for America, in support of the Catholic groups, argue that although claiming to act for the benefit of women, the ACA infringes on women's ability to freely exercise their religion because non-compliance with the mandate would result in steep penalties. See Brief of Amicus Curiae Concerned Women for America, in Support of Petitioners at 2–4. The Concerned Women for America further argue that many women who seek to protect the constitutional guarantee of free exercise of religion  are burdened by the requirements of the ACA. See id. at 4.

The American Humanist Association, on the other hand, argues that women have unique healthcare needs that include contraceptive services and that Congress amended the ACA to provide those much-needed services to women. See Brief of American Humanist Association at 17. The American Humanist Association further argues that because the government has a compelling interest to provide these preventive care services to women, public health concerns cannot be subordinated to religious interests. See id. at 20. The American Civil Liberties Union (“ACLU”), in support of the government, argues that society and the courts have steadily moved towards dismantling the use of religious defenses to engender discrimination against women. See Brief of Amici Curiae American Civil Liberties Union et al., in Support of Respondents at 26–27. The ACLU further contends that by ruling in favor of the Catholic groups, the Court would defeat the laws designed to transform the lives of women and ensure that women can participate equally in society. See id. at 28–30.


Bart Stupak, a former Congressman, and the Center for Constitutional Jurisprudence (collectively, “the Center”) argue that preventive care, as defined by federal law, does not include the provision of contraceptives and abortion-inducing drugs. See Brief of Amici Curiae Bart Stupak and the Center for Constitutional Jurisprudence, in Support of Petitioners at 9–10. The Center also contends that Congress has the authority to determine what constitutes a compelling interest and therefore, the HHS, by attempting to redefine what constitutes a compelling interest and the policy objectives of the government, exceeds its authority as an agency. See id. at 27–28.

The American Humanist Association, in support of the government, counters that for particularly those laws that affect public health and general welfare, the government may not have any “least restrictive means” through which it can achieve its objectives without burdening the exercise of religion. See Brief of American Humanist Association at 21. The American Humanist Association further argues that according to the Court’s precedents, the protection of public health is a more compelling interest than any other competing interest, including religious objections, and therefore, women's reproductive health should not be subject to religious influences. See id. at 15–22.


The Catholic groups argue that the mandate to provide contraceptive coverage prevents them from offering health coverage to their employees in a manner consistent with their faith. See Brief for Petitioners, David Zubik et al. at 19. The Catholic groups further argue that the requirement has been imposed without proof that the mandated coverage cannot be achieved through alternative means. See id. at 52. The government counters that the objections of these religious organizations are not a burden RFRA recognizes, and will frustrate the government’s compelling interest in protecting the health of all female employees. See Brief for Respondents, Sylvia Burwell at al. at 26. The Court’s decision in this case will define the extent of the ACA’s religious exemption, and the limits of the First Amendment protections afforded under RFRA. See Brief for Brief for Petitioners at 35.

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