The U.S. Supreme Court March 23 will hear a fourth challenge of the Affordable Care Act, one that focuses on a controversial mandate that employer-sponsored health plans cover contraceptives and the opt-out that allows women to obtain contraception coverage elsewhere.
This case — Zubik v. Burwell — consolidates seven separate cases in which the plaintiffs claim the contraceptive coverage mandate violates their religious freedom. In many ways, Zubik v. Burwell is very similar to its precursor, the highly-publicized Hobby Lobby case, in which the high court ruled to allow businesses owned by a small group of religious individuals or families to seek exemptions from the contraception mandate.
To make sense of these two cases and their significance Becker's Hospital Review deferred to Amy Gordon, co-chair of the Health and Welfare Plan Affinity Group at Chicago-based law firm McDermott Will & Emery. Ms. Gordon, who advises employers on insurance benefits and other regulations, has closely followed the two cases.
"The main issue here would be that depending on who you work for may dictate whether or not you are entitled to no cost contraceptive options," Ms. Gordon says.
Based on her expertise, we outline five things healthcare leaders should know about the latest chapter in the political fight over the ACA, religion and birth control.
1. Key issue in Zubik v. Burwell
"The key issue in Zubik v. Burwell is whether HHS' guidelines under the ACA's contraceptive-coverage mandate requirements and its accommodation violate the Religious Freedom Restoration Act of 1993 by forcing religious nonprofits to act in violation of their religious beliefs," according to an analysis by Ms. Gordon.
This law keeps the government from putting a "substantial burden" on the ability to exercise religious beliefs unless it has a "compelling interest" to do so, in which case it is allowed to impose such burdens if it uses "the least restrictive means," according to SCOTUSblog. In this case, the compelling interest is free access to contraceptives.
Houses of worship are exempt from the contraception mandate, though it may not include some of those religious organizations' nonprofit institutions. For-profit businesses are not exempt, but this too was challenged in the highly-publicized Burwell v. Hobby Lobby Stores case. The result of this case was an accommodation that allows a company to notify the government it religiously objects to providing its female employees with contraceptives, and the government must ensure those employees can access those forms of birth control at no cost, according to SCOTUSblog.
2. Significance of the Supreme Court's decision
Ms. Gordon laid out what is at stake in the Zubik case, "The outcome of this decision should hopefully answer three questions — first, do HHS' guidelines satisfy the RFRA's test for overriding religious objections; second, do HHS' guidelines advance a compelling government interest; and third, is the government using the least restrictive means to advance that interest?"
Some unusual decisions were made in the lower courts in this case, Ms. Gordon says, noting specifically one case involving Wheaton College. The school argued it didn't want to fill out the forms to put the accommodation in place because it felt it was a violation of its religious freedom, according to Ms. Gordon. The lower court agreed with the college, but this was the only instance. "More have been in line with the idea that filling out the form is not an unreasonable request," Ms. Gordon said in an interview. This question — whether making organizations fill out the paperwork is the least restrictive means for the government to help women access contraceptives at no cost — illustrates what is at issue in the case.
3. Zubik v. Burwell though the lens of Burwell v. Hobby Lobby
In the Hobby Lobby case "The court relied solely on RFRA for its conclusion that the contraception mandate violated plaintiffs' religious freedom. The actual decision did not limit the ruling to the four contraceptive devices originally at issue with Hobby Lobby, but was broader and applied to the entire contraception mandate," reads Ms. Gordon's analysis. In its decision, the court sided with Hobby Lobby that the mandate imposed a substantial burden on their right to exercise religion.
It came to this conclusion by looking at the three potential choices Hobby Lobby had under the law, according to Ms. Gordon. "First, they could violate their religious belief that life begins at conception by providing the contraceptive devices at issue. Second, they could exclude the objectionable contraceptive devices from their group health coverage, in which case they would have to pay an ACA penalty equal to $100 per day per affected individual (or approximately $475 million per year in Hobby Lobby's case). Third, they could stop providing group health coverage to their employees altogether," she wrote. In this third alternative, the company would have been subject to $26 million per year in penalties. Thus the court ruled the options were all a substantial burden on the company.
4. Difference between the cases
"The most glaring difference is the plaintiffs in this case are both religious employers eligible for the exemption and religiously-affiliated nonprofits eligible for the accommodation," Ms. Gordon said in an interview. Hobby Lobby involved closely-held for-profit entities.
The Hobby Lobby decision also did not answer the question of whether the mandate furthered a compelling governmental interest, which will be at issue in this case, according to Ms. Gordon.
5. How Justice Scalia's absence could impact the outcome
This case marks the first ACA challenge in the high court since Justice Antonin Scalia's death. "Since Justice Scalia sided with Hobby Lobby, his absence in Zubik v. Burwell will add an interesting dynamic to the outcome of this case," Ms. Gordon wrote in her analysis. Adding to that, she says, "Justice John Roberts was the swing vote in Hobby Lobby and some people seem to think that based on his brief in that case he may find this accommodation to be very reasonable and not in violation of RFRA."
More articles on legal and regulatory issues:
S.C. woman arrested for impersonating nurse to obtain drugs
Excela Health sues county over taxes on surgical center
Michigan governor signs bill to curb prescription drug waste: 3 things to know