The U.S. Supreme Court has unanimously remanded a consolidated appeal of seven cases addressing the contraceptive-coverage “accommodation” for religious organizations under the Affordable Care Act (ACA) to the Courts of Appeals. Zubik v. Burwell, No. 14-1418 (May 16, 2016).
In the unsigned per curiam decision, the Court directed the lower courts to consider on remand the new information presented in the parties’ post-oral argument briefs it ordered on March 29. The petitioners in each of these cases are religiously-affiliated nonprofit organizations.
The contraceptive-coverage accommodation allows religious organizations to opt out of ACA’s mandate for contraceptive coverage by applying for an exemption, which the petitioners argued violates the Religious Freedom Restoration Act. The religious organizations argued that the accommodation process “substantially burdens” religious belief by forcing them to notify their insurance companies, plan administrators, or the government of their intent to seek the exemption.
The Court stated that the parties had agreed in their briefs to a regulatory compromise originally suggested by the Court in its March 29 order. The high court’s workaround would permit an objecting religious nonprofit employer to contract with its insurance provider for a health insurance plan that excludes contraceptives. The insurer, in turn, would provide the contraceptive coverage directly to the nonprofit organization’s employees, with no further action or notice required from the organization.
The Court further provided that until the lower courts rule on the cases, the government could consider the petitioners as having provided adequate notice of their religious objection and, in accordance with the ACA and its regulations, offer contraceptive coverage at no cost to the nonprofits’ employees through the nonprofits’ insurance providers. The Court’s ruling also stayed the imposition of any fines the petitioners might face for failing to comply with the notice requirements.
Additionally, pending the lower court rulings, the government can continue to act on notices of religious objection provided by other religious nonprofits by providing no-cost contraceptive coverage through the nonprofits’ insurance providers in accordance with the ACA regulations.
Religious nonprofits that object to providing contraceptive coverage to their employees, but are not among the petitioners in Zubik or the petitioners in 13 similar cases that the high court has not yet agreed to hear, should consider providing appropriate notice of religious objection to the government in accordance with current ACA regulations. The risk of incurring penalties as a result of noncompliance, however, may be limited at this time, as the high court appears to be championing a compromise solution.