Written by Don Byrd
In an unexpected development, the U.S. Supreme Court today ordered the appeals courts involved in Zubik v. Burwell to give the parties an opportunity to resolve their differences, in light of the oral arguments and supplemental briefing in the case.
Zubik is a collection of challenges to the Obama Administration’s religious accommodation process for religious non-profits that object to providing contraceptive coverage in health insurance plans. The plaintiffs argued the accommodation, in which religious organizations provided notice of their objection and employees received contraceptive coverage directly from insurance providers, violated their religious freedom rights under RFRA.
In its unanimous opinion today, the Court noted that in subsequent questioning both the government and the plaintiff religious organizations “now confirm” that “contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”
Here is a key excerpt:
Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”
The appeals court rulings below are vacated and the courts are ordered to give parties sufficient time to “arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.'”
In the meantime, the government may not issue fines for failure to provide notice of objection.
The Court expressed no views on whether the accommodation process posed a substantial burden to the plaintiff’s religious exercise, whether it furthered a compelling government interest, or whether the regulations are the least restrictive way of advancing that interest.
The BJC filed an important brief with the Court in this case. Read more about Zubik and the BJC’s view of the issues raised by the cases at the Supreme Court’s Zubik resource page.
