Health Reform WK-EDGE High court weighs government’s interest in protecting women’s health against hijacking religious organizations’ insurers
Thursday, March 24, 2016

High court weighs government’s interest in protecting women’s health against hijacking religious organizations’ insurers

By Jenny M. Burke, J.D., M.S.

The Little Sisters of the Poor and other religious nonprofits finally had their day in court to request relief from a government mandate they claim is a violation of their religious liberty. The Supreme Court heard oral arguments on March 23, 2016, from the Little Sisters of the Poor and many other religious nonprofit organizations in Zubik v. Burwell. It will now convene to determine whether the HHS contraceptive coverage mandate and its “accommodation” to opt out of providing coverage violate the Religious Freedom Restoration Act (RFRA) by requiring religious nonprofits to self-certify their status or provide notice that they wish to opt out because they believe the accommodation “hijacks” their insurance plans and violates their religious liberty.

Oral arguments were conducted before an eight member panel of the court, with the place of the late Justice Antonin Scalia remaining vacant. A glimpse into the questioning process provides insight into how the Justices might vote. To that end, the inquiries of Justice Anthony Kennedy may be the most revealing because he is often the swing vote between the conservative (Chief Justice John Roberts, Clarence Thomas, Samuel Alito) and liberal (Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, Stephen Breyer) justices of the Court.

Certainly, “the absence of Justice Scalia and his lively participation in the oral arguments was noticeable,” said David M. Kauffman in an interview with Wolters Kluwer discussing the potential outcome of oral arguments. Kaufman is a partner at Freeborn & Peters LLP (Chicago) and a key member of the firm’s health care practice group with over 25 years’ experience representing health insurers, physicians groups, and regulators.


Arguing for the nonprofit religious organizations was former U.S. Solicitor General Paul D. Clement, Esq. of the Washington, D.C., law firm Bancroft PLLC, and Noel Francisco, Esq. of the Washington, D.C. firm Jones Day, a large U.S. based law firm that has taken up libertarian and conservative causes. Defending the contraceptive coverage provision of the Patient Protection and Affordable Care Act (P.L. 111-148) (ACA) was U.S. Solicitor General Donald B. Verrilli, Jr. Verrilli also argued for the government in National Federation of Independent Business v. Sebelius and King v. Burwell, and has appeared before the Supreme Court over 40 times.


When Congress passed the contraception mandate as part of the ACA, it required health plans to include preventive care for women, including contraception coverage and family planning services. From the beginning, the government provided an exemption from the contraceptive coverage mandate for religious employers, such as houses of worship and religious orders. It also provides an accommodation from the mandate for the health plans of religious colleges and universities, hospitals, social service agencies, and other such religious nonprofits organizations. The government has made three attempts to create an acceptable accommodation for these organizations.

A nonprofit claiming a religious objection to the contraception coverage mandate has two options of how to participate in the accommodation process and opt out of complying with the law. It can either complete and mail a brief self-certification form to its health insurance company or third-party administrator (TPA), (depending on the type of insurance it carries), or it can also provide similar notice, along with the name and contact information of its insurer or TPA, directly to HHS (see Closely-held corporations provided with contraception coverage accommodation in final regulations, July 15, 2015). Once either of those two things happens, the accommodation process is complete and the organization no longer has any involvement with coverage, because the federal government will step in and direct insurance coverage for contraception.

The religious nonprofits in Zubik, however, object to the accommodation in any form. They claim that taking any action that puts into motion a chain of events that leads to someone obtaining birth control makes them complicit in a sin and is in violation of RFRA. Designed to provide legal protection against government actions that interfere with the exercise of religion, RFRA was signed into law in 1993. Under RFRA, the federal government provides a broad protection for religious exercise and “shall not substantially burden a person’s exercise of religion.” That burden is acceptable under RFRA, however, if the government creates it “in furtherance of a compelling governmental interest” and it uses “the least restrictive means of furthering that compelling governmental interest.”

The Parties’ Contentions

The religious nonprofit organizations in their briefs claimed that the required self-certification substantially burdens their deeply held religious beliefs under RFRA because it is that very self-certification that triggers the coverage of contraceptives by insurers and TPAs. Zubik and others describe the situation as one in which the government is essentially “hijacking” their insurance plans, forcing their plans to cover contraceptives. According to the religious nonprofits, the accommodation is not the least restrictive means of ensuring access to birth control because the government is taking over the health plans that they have either contracted with or, in the case of the Little Sisters of the Poor, manage. The religious nonprofits suggest that the government could have either created a new birth control entitlement program funded by taxpayers or they could have offered birth control-only plans in the ACA’s health care exchanges to women whose employers refuse to provide them with contraceptive coverage.

In its response brief, however, the government argues that the accommodation “embodies precisely the sort of sensible balance that Congress contemplated in enacting RFRA.” It contends that even if there is a substantial burden, the accommodation “furthers a compelling interest in securing for women the full and equal health coverage the ACA provides, and does so by the least restrictive means available (42 U.S.C. 2000bb-1(b)(2)).”

The government’s interest cannot be very compelling, argued Clement and Francisco, because the government has allowed so many exceptions—to churches, for-profit companies founded on religious principles, and employers whose health care plans are unchanged since the ACA was passed—that exempt employers of tens of millions of people.

Gen. Verrilli responded that the challengers want not only to be relieved from the obligation of providing contraceptive coverage themselves but also want to prevent the government from working with other entities to fill the gap. The right to free exercise of religion does not include the right to restrict others from seeking the health care they need, he said. "Contraceptives are an essential component of women's health care."

Gen. Verrilli told the court the law provides "a sensible balance, respecting both the employer's religious views and the interests of their employees."

Religious Freedom Restoration Act

Many of the legal arguments surrounding the contraception mandate and accommodation focused on RFRA. Kaufman believes that, “from the questioning, it would appear the Justices are evenly split on whether the accommodation violates RFRA.”

In the Supreme Court’s holding in Burwell v Hobby Lobby, five Justices ultimately agreed that the original regulations put into place in 2013 (78 FR 39869) constituted a substantial burden on the employers. This argument, however, is tougher to make in this case, because the government changed the accommodation after the decision in Hobby Lobby to make it easier to comply. The accommodation met with opposition, however, with Clement noting that, “just because they call it an accommodation doesn’t mean it’s immune from RFRA analysis.”

The liberal justices, Sotomayor, Ginsberg, Kagan and Breyer made it clear that they agreed that the new regulations are not a “substantial burden” under Hobby Lobby. As Justice Sotomayor pointed out, “it's not a substantial burden if someone else is going to do the act that you're objecting to.”

Justice Kennedy, the only potential swing vote for the government, seemed unconvinced that the regulations were adequate. “It seems to me that that’s a substantial burden,” Kennedy informed Gen. Verrilli, at one point.

When questioning Gen. Verrilli, Chief Justice Roberts and Justice Alito left no doubt that they would vote against the government and the accommodation. Chief Justice Roberts said, “Hijacking is an apt description of what the government wants.” If semantics is any indication of where Justice Kennedy stands, he used the same negative term to describe the accommodation process.


In addition to the discussion over the substantial burden allegedly imposed on the religious nonprofits, Clement and Francisco also argued that the government used the wrong standards in deciding which groups received the exemptions and which did not. Francisco told the court that the government could not prove providing the coverage was a compelling need because it provided exemptions for churches and large plans that were grandfathered in with the law.

Justice Kagan said that did not prove his point. “There’s not a law in town that doesn’t have exceptions,” she said. “There is a long tradition that churches are different,” she added. “If you’re saying that every time Congress gives an exemption to churches and synagogues and mosques that they have to open that up to all religious people, then the effect of that is that Congress just decides not to give an exemption at all.”

Even Justice Kennedy seemed to align himself with Kagan on this point. “It’s going to be very difficult for this court to write an opinion which says that once you have a church organization, you have to treat a religious university the same,” he said. Given this commentary, Kaufman believes that “It does not appear that a majority of the Justices favor an expansion of the exemption provided to churches and similar religious entities.”

Less restrictive means

Chief Justice Roberts and Justice Alito moved away from the exemption discussion and said women could receive contraception in other ways—the federal government could provide it or they could buy insurance elsewhere, such as through one of the health insurance exchanges under the ACA.

Kaufman noted that Justice Kennedy “did not challenge the petitioner’s assertion that the accommodation process substantially burdens the practice of their religion,” but found Kennedy’s inquisition into the “least restrictive means to further a compelling governmental interest” insightful. Kennedy commented that, with the accommodation, “the religious organization plans…are subsidizing the conduct they deem immoral,” perhaps indicating that he does not believe the government is using the least restrictive means. Kennedy also went so far as to suggest that the employees of religious nonprofit organizations wishing to obtain birth control could just obtain a separate policy on the health insurance exchanges.

“Most significantly,” Kaufman viewed Kennedy’s interjection into Gen. Verrilli’s responses to be revealing. When Verrilli argued that other alternatives to the accommodation proposed by the petitioners imposed significant obstacles for women to use medically necessary services, Justice Kennedy interjected, “That’s why it’s necessary [for the government] to hijack the plans.” But Gen. Verrilli explained, “that’s precisely the kind of obstacle that Congress is trying to ensure didn’t exist when it passed the preventive services portion of this statute.”

Gen. Verrilli went on to clarify the government’s compelling interest by explaining that “the whole idea here is to ensure that these employees get the health care, get this covered, get this care from their regular doctor as part of their regular health care without these added obstacles and the need to go out and sign up for another plan and then find the doctors who are going to provide coverage under that plan.” If a woman cannot obtain contraception from her regular doctor, it could lead to a world where that physician would be unable to prescribe contraception or even counsel the woman on many health related issues. Further, Gen. Verrilli noted, it would add an additional layer of complication that would discourage many women from seeking out contraceptive care.

Kaufman noted that the Justices “seemed split on the idea of requiring the purchase of separate contraceptive coverage plans.” He found that “Justice Alito and Chief Justice Roberts appear to believe such coverage is a viable alternative. Justices Ginsberg and Sotomayor were in agreement with Gen. Verrilli, who argued that the idea is unworkable because it would require a change in law, such products may not be offered by insurers, the plans would not provide seamless coverage, and would be otherwise burdensome, thereby decreasing the availability of contraceptive coverage.”

Insurance plans

When determining its final answer, it has been suggested that the Supreme Court may make certain distinctions between the varying types of health plans used by the religious nonprofit organizations. Kaufman noted that this is because some purchase insurance policies sold by insurance companies while others self-insure and employ TPAs to administer their plans. These plans are subject to federal Employee Retirement Income Security Act (ERISA) regulations and the contraception coverage requirement. Kaufman also pointed out that the Little Sisters of the Poor’s coverage is provided through a self-funded church plan, which is exempt from ERISA. Church plans are not obligated to offer contraceptive coverage. Therefore, Kaufman stated that “even if the Little Sisters of the Poor participated in the accommodation process, its church plan would not have to provide the coverage.” He believes it is arguable that the Little Sisters of the Poor would be less burdened if providing contraceptive coverage were voluntary. The court did not indicate whether it would make distinctions between the petitioners in deciding these cases, Kaufman said.

Interested parties weigh in

In recent weeks, several interested parties have weighed in on the Zubik case to set the stage for the arguments, but also in an attempt to influence public opinion and presumably the Justices. One such organization is the Baptist Joint Committee (BJC), which filed a brief frequently referenced by the Justices during oral arguments. The brief was written by University of Virginia School of Law professor Douglas Laycock, a leading religious liberty scholar, and it emphasizes the importance of RFRA’s standard in creating exemptions to policies that substantially burden religion.

According to the BJC’s brief, the arguments made by the religious nonprofits actually “endanger” religious liberty because of the many laws that currently provide limited religious exemptions. It also pointed out that the government must have the ability to enact exemptions that apply to specific situations. The BJC claims that the regulations in these cases do not substantially burden the free exercise of religion because the organizations have been wholly exempted from providing contraception themselves. They believe that the objection of the religious nonprofits is actually to the government’s efforts to deliver contraception separately through secular insurers.

Justice Sotomayor agreed, noting that, “what the religious groups I understand are asking is the government not to use its regulatory power with third parties who don’t have a religious objection, and forcing a burden on the women who its trying to help, third parties that don’t have the same religious objection, and burdening them to do other things.”

But that is not how one of the parties, the Little Sisters of the Poor, sees it. “We don’t understand why the government is doing this when there is an easy solution that doesn’t involve us—it can provide these services on the exchanges,” said Sister Loraine Marie Maguire, mother provincial for the Little Sisters of the Poor, in a statement made outside the court. “It’s also hard to understand why the government is doing this when one-third of all Americans aren’t even covered by this mandate, and … yet the government threatens us with fines of $70 million per year if we don’t comply. … All we ask is that we can continue to do this work.”


Of particular interest during oral arguments was the widespread use on the conservative side, attorneys and Justices alike, to use the word “hijack.” As Kaufman pointed out, “advocates often attempt to find a key term that crystallizes their argument in a compelling and readily understood way. Whether or not the description is accurate, the petitioner’s use of the term “hijacking” was an effective way to negatively characterize the accommodation process,” and that’s just what they did.

Lyle Denniston, a frequent contributor to SCOTUSblog who has been covering the Supreme Court for 58 years also noted the attention paid to the word “hijack.” He believes that this “single word may tell it all.” He noted that although it seemed the government had four Justices on its side during oral arguments, “there was no way to stop other Justices from thinking—and thinking negatively—about a single word: ‘hijacking.’…If there was a startling moment during the ninety-four-minute hearing on Zubik v. Burwell,” Denniston commented, “it came when Justice Anthony M. Kennedy deployed that word in obvious sympathy to those institutions.”

Split decision

Perhaps the most frustrating pill to swallow after reviewing the oral arguments is the sheer likelihood of an impending split decision among the Justices. Should that happen, all lower court opinions from each circuit court would remain in place, which means most affected women would retain their access to contraceptives even if their employers object. However, there is one circuit, the Eight Circuit Court of Appeals, which ruled the opposite way. Women in the states covered by the Eighth Circuit—Arkansas, Iowa, Minnesota, Missouri, Nebraska and North and South Dakota—could lose access if their employers object, because that court found the regulation invalid. This is precisely the type of confusion Supreme Court review was designed to avoid.


On the sixth anniversary of the signing of the ACA, and the fourth time in those six years that challenges to the law have been considered by the Supreme Court, oral arguments indicate that the Court may have reached a stand still. It is very clear that four Justices seem to side with the government while the other four are likely to side with the religious nonprofits. The split would set no legal precedent, making the arguments put before the Supreme Court all for naught.

Attorneys: Paul D. Clement (Bancroft PLLC); Noel Francisco (Jones Day); David M. Kaufman (Freeborn & Peters LLP)

MainStory: StrategicPerspectives NewsFeed ContraceptionCoverageNews EmployerMandateNews DrugNews EssentialBenefitNews

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