Religious Objections to Contraception at the Supreme Court

After hearing arguments about exempting religious non-profits from providing insurance coverage that includes birth control last week, the Supreme Court asked for new proposals from both sides about how to protect religious freedom while preserving coverage for female employees under the Affordable Care Act. 

The Affordable Care Act mandates that most forms of FDA approved birth control be covered by health insurance plans at no costs to the consumer. Religious institutions such as churches were exempted from this requirement. The federal government also offered an accommodation for religiously affiliated non-profit hospitals, schools, and charities that have faith-based objections to providing some forms of contraception to their employees or, in the case of religiously affiliated colleges, their students.

This is an opt-out provision that requires the non-profit to notify the government that it is eligible to be excluded from paying for or providing access to contraceptives to which it objects. This is the same accommodation that the government made after the decision in Burwell v. Hobby Lobby Stores,when the the Court decided to protect the religiously devout owners of closely held, for-profit businesses from having to provide birth control to their female employees.

But in this case, Zubik v. Burwellthese non-profits claim that requiring them to take any action, even simply notifying the government that they object,  would involve them in a violation of their religious objections birth control. They argued that the government needs to find a way to provide access to contraceptives entirely independently of those non-profits and their existing health plans.

The Supreme Court’s order seems to suggest that at least some Justices have bought this argument and believe that new arrangements that could be made between the government and health insurers to provide coverage.

The order offers a very specific example of solution:

The non-profits enter a contract with a health insurer to cover their employees but specifies that any such coverage not include the types of contraceptives to which the non-profits object for religious reasons.  Thus, the non-profits would have no legal obligations to provide or pay for contraceptives, and no duty to notify anybody outside their own plan of their position.  Any notice to employees about access to coverage would have to be made by the insurance company, which also would tell the employees that their employer is not paying for the benefits and that those are not being provided through the institutions’ own health plans. (SCOTUSblog Mar. 29, 2016)

If the government and insurance companies move forward with the above, it is unclear whether this would be an acceptable solution to those bringing this case. If not, then the question arises – what do they really object to? Providing contraception to their female employees, even if their hands are clean of the transaction? Or do they object to females having access to birth control period?

The text of the order is here.

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