by Caroline Mala Corbin, professor of law, University of Miami School of Law. Corbin is the author of an ACS Issue Brief, The Contraception Mandate Accommodated: Why the RFRA Claim in Zubik v. Burwell Fails.
Today, the Supreme Court will hear arguments in Zubik v. Burwell. Zubik represents the second challenge to the contraception benefit of the Affordable Care Act, which requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections won a RFRA challenge to it. In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit.
There is, however, is a major difference between Hobby Lobby and Zubik: These religiously affiliated nonprofits are already exempt from the contraception mandate. Once a nonprofit certifies that it is religiously opposed to contraception and notifies either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofit does not have to provide, pay for, or even inform their employees or students of the separate coverage.
Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin.
Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a legal mistake. Their belief that they are complicit in the sin of contraception use rests on the assumption that their written refusal triggers the provision of contraception. As a matter of law, they are wrong. Their paperwork does not cause contraception coverage. The Affordable Care Act does. It is federal law, not the completion of any form, that creates the insurance companies’ obligation to cover contraception. All the paperwork does is extricate the nonprofit organizations from the coverage. Although courts must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law.
