Contraceptive Case Argued Before Supreme Court

By Allen Smith, J.D. Mar 24, 2016

On March 23, another Affordable Care Act (ACA) case was argued before the U.S. Supreme Court. And as in Burwell v. Hobby Lobby, the issue again involved the question of contraceptive rights vs. religious beliefs.

The consolidated seven cases argued before the court concern a two-page form that some religiously affiliated nonprofit organizations are refusing to complete on religious grounds. The form would result in their insurers providing to their nonprofit employees contraceptives that the employers view as abortifacients—devices or pills that result in abortion.

The form was intended to be an accommodation that would satisfy the religious nonprofit employers by not forcing them to provide the coverage themselves, while still providing a way to adhere to the ACA’s contraceptive mandate. After the nonprofit organizations fill out a two-page form saying they object to the mandate and send it to the insurer or the government (which will send it to the insurer), the insurer then must cover the cost of the contraception without any cost-sharing. The plaintiffs in this case refused to fill out the form and consequently were subject to steep penalties.

Numerous Exemptions

Noel Francisco, an attorney with Jones Day in Washington, D.C. and former solicitor general, argued for the nonprofit employers that the ACA provides numerous exemptions from its requirements, including a grandfathering provision that 25 percent of plans still rely on. Why not also exempt these organizations from its requirements? he argued.

Justice Ruth Bader Ginsburg countered that the grandfathered provisions were just transitional relief.

“Yes, your honor,” Francisco replied, “except that they allow employers to raise co-payments at the rate of medical inflation without losing status, and they allow [an employer] to continue adding employees to the plan without losing grandfathered status, which I think partly explains why it’s leveled off at about 25 percent over the last couple of years.”

Justice Elena Kagan criticized Francisco’s reasoning, saying his argument that there are many other exemptions boils down to a direction to Congress that “next time you pass a law, don’t put in an exemption for churches; you’re going to get in real trouble doing that. Don’t write transition rules that will help people adjust to a new legal regime; you’re going to get in real trouble doing that. Don’t write exemptions for small businesses, even though there are very particular concerns that small businesses face; you’re going to get in trouble for that. Now, those are terrible incentives to give to a legislature, are they not?”

When Francisco criticized the government for having some unspecified “utter absence of evidence,” Justice Sonia Sotomayor interrupted to say, “What is the utter absence? There is plenty of evidence that was relied upon to show that when contraceptives are provided to women in a seamless way, that the number of unintended pregnancies dramatically falls, as does the number of abortions.”

Justice Samuel Alito asked Solicitor General Donald Verrilli Jr. why nonprofit employees couldn’t get contraceptives on a special plan available on the exchange in case they needed these medications. There’s no such coverage at this time, Amy Gordon, an attorney with McDermott, Will & Emery in Chicago, told SHRM Online.

“Consider this, please, from the perspective of the woman employee,” Verrilli said. “She has a health plan from her employer. She goes to her regular doctor. She may have a medical condition that makes pregnancy a danger for her. She may be one of the women, and this [accounts for] about 15 percent of all prescribed contraception, who needs contraception to treat a medical condition, or maybe she just wants the contraception that’s appropriate for her.

“What happens under petitioners’ regime is her regular doctor has to say to her, ‘Sorry, I can’t help you.’ ”

The government keeps coming back to the argument of the need for seamless coverage, Gordon noted. But Alito insisted there must be other reasonable alternatives to the government’s arrangement.

In Hobby Lobby, the Supreme Court ruled that although the government had a compelling reason to impose the contraceptive mandate, it had not shown that the mandate was the least restrictive means for imposing the mandate on a for-profit religious employer.

Before Hobby Lobby, there wasn’t a way to opt out of coverage. That case showed the way to do it was by notifying the government of strongly held religious beliefs, said Steven Friedman, an attorney with Littler in New York City. Here the plaintiffs are arguing “that road map is too burdensome for us,” he said.

This case is Zubik v. Burwell, No. 14-1418.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.​


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