Zubik v. Burwell

Zubik v. Burwell

Argued March 23, 2016
Full case name David A. Zubik et al. v. Sylvia Burwell, Secretary of Health and Human Services, et al.
Court membership
Chief Justice
John G. Roberts
Laws applied
Affordable Care Act, Religious Freedom Restoration Act

Zubik v. Burwell is a case before the United States Supreme Court on whether religious institutions other than churches should be exempt from the contraceptive mandate, a regulation adopted by the US Department of Health and Human Services (HHS) under the Affordable Care Act (ACA) that requires non-church employers to cover certain contraceptives for their female employees. Churches are already exempt under those regulations.[1]

Background

Federal law

EBSA Form 700, version as of January 1, 2014

Religious Freedom Restoration Act

The United States Supreme Court ruled in Employment Division v. Smith (1990) that a person may not defy neutral laws of general applicability[lower-alpha 1] even as an expression of religious belief. "To permit this," wrote Justice Scalia, citing the 1878 Reynolds v. United States decision, "would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.[2]" He wrote that generally applicable laws do not have to meet the standard of strict scrutiny, because such a requirement would create "a private right to ignore generally applicable laws". Strict scrutiny would require a law to be the least restrictive means of furthering a compelling government interest.

In 1993, the US Congress responded by passing the Religious Freedom Restoration Act (RFRA), requiring strict scrutiny when a neutral law of general applicability "substantially burden[s] a person’s[lower-alpha 2] exercise of religion".[3] The RFRA was amended in 2000 by the Religious Land Use and Institutionalized Persons Act (RLUIPA) to redefine exercise of religion as any exercise of religion, "whether or not compelled by, or central to, a system of religious belief", which is to be "construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution". The Supreme Court upheld the constitutionality of the RFRA as applied to federal statutes in Gonzales v. O Centro Espirita in 2006.

Affordable Care Act

Most Americans are covered by employer-sponsored health insurance. In 2010, Congress passed the Affordable Care Act (ACA), which relies on the Health Resources and Services Administration (HRSA), part of the Department of Health and Human Services (HHS), to specify what kinds of preventive care for women should be covered in certain employer-based health plans. The HRSA decided that all twenty contraceptives approved by the U.S. Food and Drug Administration (FDA) should be covered.[4] Employers that refuse are fined $100 per individual per day,[5] or they can replace their health coverage with higher wages and a calibrated tax.

HHS exempted churches (including houses of worship, such as synagogues and mosques) and their integrated auxiliaries, associations of churches, and any religious order that engages exclusively in religious activity. These are the same groups exempt from filing IRS Form 990. Employers providing grandfathered plans (plans that have not had specific changes before March 23, 2010), and employers with fewer than 50 employees were also exempt. Other non-profit organizations that object to any required contraception coverage could file an EBSA form 700 with their insurance company notifying them of the non-profit's objection. The insurance company would then provide the contraceptive coverage directly to employees without any involvement of the employer, including any distribution of literature or extra payments by the employer.[6]

Litigation

The Little Sisters of the Poor, a Roman Catholic religious order, runs over 25 homes for low-income elderly in the United States[7] and therefore is not automatically exempt from the contraceptive mandate. It objected to filing Form 700 because it believed that doing would make the order complicit in providing contraception, a sin under Roman Catholic doctrine. On December 31, 2013, the day before the filing requirement was to come into effect, Supreme Court Justice Sonya Sotomayor granted a temporary injunction to the Little Sisters of the Poor, allowing them to simply inform the Secretary of Health and Human Services of their objections, pending resolution of the case.[8][9][10] Other religious institutions filed similar objections.

On February 15, 2012, Priests for Life v. HHS was filed in the U.S. District Court for the Eastern District of New York challenging the constitutionality of the contraceptive mandate on behalf of Priests for Life, a national, Catholic, pro-life organization based in New York City. The case was dismissed by U.S. District Court Judge Frederic Block for lack of ripeness because the new compromise regulations were not yet finalized.[11][12][13]

On June 30, 2014, the Supreme Court ruled 5 to 4 in Burwell v. Hobby Lobby that under the Religious Freedom Restoration Act (RFRA), closely held for-profit corporations are exempt from the contraceptive mandate, if they object on religious grounds, because the accommodation offered to objecting non-profits would be a less restrictive way to achieve the ACA's interest.[14]

On July 3, 2014, the Supreme Court granted a temporary exemption to the approach it suggested as a less restrictive alternative in Hobby Lobby, where the plaintiffs would send an EBSA Form 700 to its insurance issuer, which would pay for the contraception. In an unsigned emergency injunction for Wheaton College in Illinois, the court said that instead of notifying its insurance issuer, Wheaton can notify the government. Once notified, the government should notify the issuer. Wheaton believed that by transferring the obligation to cover contraceptives to its insurance issuer, it was triggering that obligation. The emergency injunction does not constitute a ruling on the merits of Wheaton's religious objection. The court said "Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives."[15] In a 15-page dissent joined by the other two women on the court, Justice Sotomayor criticized the majority's reasoning and distinguished it from the situation with the Little Sisters of the Poor.[16] A revised version of EBSA Form 700, effective August 2014, says "[a]s an alternative to using this form, an eligible organization may provide notice to the Secretary of Health and Human Services that the eligible organization has a religious objection to providing coverage for all or a subset of contraceptive services...".

Eight appeals courts have upheld the ACA mandate for non-church religious institutions, but the U.S. Court of Appeals for the Eighth Circuit ruled the other way, supporting the challenge by religious non-profit institutions.[17]

Supreme Court review

On November 6, 2015 the Supreme Court of the United States decided it will review the case combined with 6 other similar challenges to the contraceptive mandate.[18][19] The case is titled Zubik v. Burwell and the 6 other challenges include Priests for Life v. Burwell, Southern Nazarene University v. Burwell, Geneva College v. Burwell, Roman Catholic Archbishop of Washington v. Burwell, East Texas Baptist University v. Burwell and Little Sisters of the Poor Home for the Aged v. Burwell.[18][20][21][22][23][24][25][26][27][28][29]

Oral arguments

Oral arguments were heard on March 23, 2016. Issues discussed included how and where to draw the line between exempt churches and other religious non-profits and whether the government was "hijacking" the insurance plans created by the non-profits to achieve the government's goals. Due to the death of Justice Anthony Scalia in February, only eight justice heard the arguments, raising the possibility of a four to four split, which would leave the appeals court rulings in force in their respective geographic areas until some later case comes before the Supreme Court.[1][17][30]

On March 29 in a highly unusual move, the Court directed the parties “to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” The Court suggested a possible scheme where petitioners would obtain insurance without contraceptive coverage and “petitioners’ insurance company—, aware that petitioners are not providing certain contraceptive coverage on religious grounds—, would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”[23][31]

See also

References

  1. ↑ The meaning of neutral law of general applicability was elaborated by the court in 1993.
  2. ↑ The Dictionary Act defines the word 'person' in any act of Congress to include corporations.
  1. 1 2 Justices Seem Split in Case on Birth Control Mandate, Adam Liptak, New York Times, March 23, 2016
  2. ↑ "REYNOLDS v. UNITED STATES United States Supreme Court 98 U.S. 145, 25 L.Ed. 244 (1878)". 1878. Retrieved September 2, 2015.
  3. ↑ Liptak, Adam (March 25, 2014). "Supreme Court Hears Cases on Contraception Rule". The New York Times. Retrieved March 25, 2014.
  4. ↑ "A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius". HHS.gov. Retrieved March 25, 2014.
  5. ↑ Mears, Bill (March 23, 2014). "Justices to hear 'Hobby Lobby' case on Obamacare birth control rule". CNN. Retrieved March 25, 2014.
  6. ↑ "High court worsens pain of Obamacare birth-control compromise". Retrieved July 3, 2014.
  7. ↑ Little Sister Directory of Homes accessed March 27, 2016
  8. ↑ Bazelon, Emily (Jan 24, 2014). "Did Little Sisters of the Poor Win or Lose at the Supreme Court?". Slate. Retrieved Jul 6, 2014.
  9. ↑ Supreme Court order
  10. ↑ order from Sotomayor
  11. ↑ Jeffrey, Don (Apr 15, 2013). "Priests for Life’s Contraceptive Mandate Suit Dismissed". Bloomberg.
  12. ↑ http://www.americanfreedomlawcenter.org/wp-content/uploads/2013/09/Opening-Brief-Filed.pdf
  13. ↑ http://www.christiantoday.com/article/supreme.court.to.hear.nuns.complaint.on.obamacare.contraceptive.mandate/69923.htm
  14. ↑ "Supreme Court of the United States : Syllabus : BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC., ET AL." (PDF). Supremecourt.gov. Retrieved 2015-03-11.
  15. ↑ Order in Pending Case, Wheaton College v. Bruwell, On Application for Injunction, July 3, 2014
  16. ↑ Liptak, Adam (Jul 3, 2014). "Birth Control Order Deepens Divide Among Justices". The New York Times. Retrieved Jul 3, 2014.
  17. 1 2 Argument analysis: On new health care case, a single word may tell it all, Lyle Denniston, Scotusblog, March 23, 2016
  18. 1 2 http://www.scotusblog.com/2015/11/court-to-hear-birth-control-challenges/
  19. ↑ http://www.cnn.com/2015/11/06/politics/supreme-court-obamacare-contraception-mandate/index.html
  20. ↑ http://www.goodreads.com/author_blog_posts/9429815-court-grants-all-seven-nonprofit-petitions-in-contraceptive-coverage-cas
  21. ↑ http://balkin.blogspot.com/2015/11/who-is-zubik-in-zubik-v-burwell-and-why.html
  22. ↑ http://blogs.findlaw.com/supreme_court/2015/11/scotus-will-hear-all-the-obamacare-contraception-exemption-cases.html
  23. 1 2 http://www.scotusblog.com/case-files/cases/zubik-v-burwell/
  24. ↑ http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/14-1418.htm/
  25. ↑ http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/14-1453.htm
  26. ↑ http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/15-110.htm
  27. ↑ http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/14-1505.htm
  28. ↑ http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/15-101.htm
  29. ↑ http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/15-105.htm
  30. ↑ http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-1418_j4ek.pdf
  31. ↑ March 29 Court Order directing additional briefs
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