Supreme Court Weighs Religious Freedom in Birth Control Case

In another major case concerning Texas women’s reproductive care, the U.S. Supreme Court on Wednesday will consider if the right to religious freedom is broad enough to completely exempt nonprofits with religious objections to birth control from providing women access to it through their insurance plans.

The case, formally known as Zubik v. Burwell, pits religious nonprofit groups — including East Texas Baptist University and Houston Baptist University — against the federal government over a provision of the Affordable Care Act requiring some employers to provide contraceptive coverage to female workers.

The Texas case is among seven related lawsuits the high court agreed to hear together in which religious nonprofits argue the mandate infringes on their religious freedom. The Obama administration says the groups are offered a way around the requirement through a mechanism that still gives women access to free contraception.

Under the federal health care act, employers with 50 or more full-time employees are required to offer health plans with “minimum essential coverage,” including access to federally approved contraception for women, without co-payments or deductibles.

Religious nonprofits can seek “accommodations” to be exempted from the contraceptive mandate by submitting a form or notification certifying the organization’s objection on religious grounds. Doing so transfers the administrative duties of providing contraception coverage from the employer to the insurance company or a third party, which takes over handling the claims.

But the nonprofits argue they should be exempted from the requirement altogether because they are still “being forced to facilitate access” to contraceptives they oppose. In this case, the religious groups object to emergency contraceptives, including the so-called morning-after-pill, and intrauterine devices, which they liken to so-called “abortifacients” — or drugs that induce an abortion. (Health experts and scientists have disputed that claim.)

Citing the federal Religious Freedom Restoration Act, the groups say the requirement substantially burdens their sincerely held beliefs and that the government and “courts can’t second-guess the reasonableness” of those beliefs.

“At bottom, then, the government’s refusal to grant petitioners a true exemption from the contraceptive mandate can be explained only by its refusal to credit their sincere religious beliefs that the role the government wants them to play would be a sin,” the religious nonprofits wrote in a brief filed with the high court.

The federal government contends the religious nonprofits’ beliefs should not get in the way of their female employees’ ability to obtain contraception of their choice. The law gives religious nonprofits a way to opt out, federal attorneys say, but that reprieve does not extend to third parties left to administer insurance plans.

They also point out that the religious accommodation was crafted in consultation with other religious organizations, insurers and women’s groups.

“We do not question the sincerity or importance of petitioners’ religious beliefs. But as seven courts of appeals have held, their legal claim stretches RFRA too far,” the Obama administration wrote in its brief to the high court.

This is the second Texas case concerning women's health the high court has taken up this term. It is also weighing the constitutionality of Texas' 2013 abortion restrictions. 

With a vacancy on the Supreme Court, a decision could leave access to certain contraceptives under the ACA mandate up to geography. A tie among the eight remaining justices — four each appointed by Democrats and Republicans — would uphold lower court rulings, which have varied across the country.

In Texas’ case, that would mean religious nonprofits are not completely exempt from the birth control mandate.

A federal district court previously sided with the universities, blocking the mandate from going into effect. But the New Orleans-based U.S. 5th Circuit Court of Appeals — considered the most conservative appellate court in the country — later reversed that decision.

In the 5th Circuit’s ruling, a three-judge panel sided with the federal government, saying the Texas universities had “not shown and are not likely to show that the requirement substantially burdens their religious exercise under established law.”

A decision in the case is expected this summer.