ACA’s Contraceptive Mandate Returns to Supreme Court

By Allen Smith Nov 9, 2015
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Equal contraceptive rights and religious freedom are at stake in seven cases before the Supreme Court this term. The court announced on Nov. 6, 2015, that it would consolidate and review the cases.

The cases center around a two-page form that religiously affiliated nonprofits nationwide are refusing to complete because the form would result in their insurers providing to nonprofit employees contraceptives that the employers view as “abortifacients”—devices or pills that result in abortion.

The form was envisioned as an accommodation that would free the religious nonprofits from having to provide the coverage themselves, while still satisfying the Affordable Care Act’s (ACA’s) contraceptive mandate. Most appeals courts have ruled that the form does not unduly burden the nonprofits. One appeals court disagreed, however, and the Supreme Court will resolve whether the accommodation substantially burdens the plaintiffs in violation of the Religious Freedom Restoration Act.

High Stakes

The accommodation could be struck down, so equal contraceptive rights between men and women are at stake, said Brigitte Amiri, a senior staff attorney with the American Civil Liberties Union (ACLU), in an interview with SHRM Online. (The ACLU, a national organization advocating individual rights, has filed friend-of-the-court briefs in the cases.)

Also at stake is religious freedom, said Robert Muise, an attorney with the American Freedom Law Center (AFLC) who is representing Priests for Life, a plaintiff in one of the cases brought by a family of ministries involved with the pro-life movement. The AFLC is a public interest litigation firm that seeks to defend Judeo-Christian heritage in courts nationwide.

Other named plaintiffs in the seven cases include East Texas Baptist University in Marshall, Texas; Geneva College in Beaver Falls, Pa.; Little Sisters of the Poor Home for the Aged (a group of Catholic nuns that runs homes for the elderly globally); the Roman Catholic Archbishop of Washington; Southern Nazarene University in Bethany, Okla.; and Bishop David Zubik of the Catholic Diocese of Pittsburgh.

This is not the first time the Supreme Court has reviewed whether the contraceptive mandate violates the Religious Freedom Restoration Act. In 2012, the for-profit company Hobby Lobby challenged the ACA, claiming that requiring the company to include contraception in its health care plan violated its owner’s religious liberty under the Religious Freedom Restoration Act. In June 2014, the Supreme Court ruled in Hobby Lobby’s favor but noted that there was an accommodation available for nonprofits, without judging whether the accommodation was lawful.

Religious Freedom Restoration Act

In the seven new cases going before the high court, these religiously affiliated nonprofits have similarly argued that the ACA’s contraceptive services mandate as applied to nonexempt, nonprofit religious organizations violates the Religious Freedom Restoration Act.

They have asserted that the ACA requires nonexempt religious employers to affirmatively authorize coverage for, and access to, contraception, sterilization, abortifacients and related education and counseling for the participants and beneficiaries of its health care plan under penalty of federal law in direct violation of their sincerely held religious beliefs.

The ACA effectively forces religious nonprofits to be “participants in immorality, which we will not do,” Muisesaid.

But Amiri said that while the nonprofits have a “right to religious beliefs, they do not have the right to impose them on employees,” who have rights afforded by the law.


The Department of Health and Human Services provides an accommodation to religiously affiliated organizations that don’t want to comply with the mandate, Amiri added. Under the accommodation, they need to fill out the two-page form saying they object 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.

Leading up to these cases, seven of eight appeals courts (D.C., 2nd, 3rd, 5th, 6th, 7th and 10th) had ruled that filling out the form was not a substantial burden on the employer’s religious beliefs. Only one appeals court—the 8th Circuit—held that it was a substantial burden.

However, Muise said the form is “no accommodation” because it would force religious nonprofits to write a letter to continue with contraceptive services. “We’re not going to do that,” he said.

He asked why the government doesn't “allow insuring without abortifacients.” As the law stands now, if the nonprofits dropped the contested drugs and procedures from their plans, there would be “draconian penalties.”

Muise also said the government defines exempt religious entities too narrowly.

Amiri countered that without contraceptive coverage, female employees at religiously affiliated nonprofits would have to spend significant amounts of money on contraceptivesseveral hundred dollars on intrauterine devices, for example. “Women historically have had to pay more for contraception than men,” Amiri said. Without the ACA contraceptive mandate’s accommodation, she noted, women would be back where they were before the ACA was passed: with unequal access to contraception.

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

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