Zubik v. Burwell: The contraceptive mandate explained

Nathanael Roy breaks down Obamacare’s contraceptive mandate and what the Supreme Court will (or won’t) do about it.

The Patient Protection and Affordable Care Act, commonly known as Obamacare or the Affordable Care Act (ACA), is one of the largest changes to the American healthcare system since the establishment of Medicare and Medicaid. As such, since its passage, almost every healthcare case that comes to the Supreme Court will inevitably involve the ACA. These cases bring out detractors and defenders of the law who are quick to support the side which best represents their team. However, even Barack Obama acknowledges that “[l]ike every major piece of legislation—from Social Security to Medicare—the law is not perfect,”[1] and therefore each challenge to the law and its specific policies should be evaluated on its own merit within the context of our healthcare system. On Tuesday, the Supreme Court remanded the latest challenge to the Affordable Care Act, Zubik v. Burwell, back to lower courts, refusing to definitively rule whether or not the HHS mandate—the contraceptive mandate implemented by the Department of Health and Human Services (HHS)—violated rights to religious freedom under the Religious Freedom Restoration Act (RFRA).

It may be best to back up and describe a contraceptive mandate. First, speaking generally, an insurance mandate is a requirement for insurers to provide coverage for specific treatments.[2]  Insurance mandates can exist at the state or federal level, and they typically are used to define a floor of what can be called health insurance. In the Affordable Care Act, the HHS contraceptive mandate requires insurers to cover some form of FDA-approved female contraceptive at no cost to the patient. Churches and places of worship were exempt from this mandate when the law was written.

The rationale for the HHS mandate comes from a group of experts at the Institute of Medicine, who were tasked by the U.S. Department of Health and Human Services (HHS) with “reviewing what preventive services are important to women’s health and well-being and then recommending which of these should be considered in the development of comprehensive [healthcare] guidelines.” In its final report, the group defended the mandate, stating that “[t]he evidence provided to support a recommendation related to unintended pregnancy is based on systematic evidence reviews and other peer-reviewed studies, which indicate that contraception and contraceptive counseling, are effective at reducing unintended pregnancies.”[3] This conclusion, as well as the other recommendations contained in the group’s report, may not carry the same weight as those of the U.S. Preventive Services Task Force (USPSTF), but it does represent the work of a broad range of health and health policy experts—including two who have worked for the USPSTF—and should thus be taken seriously by legislators.

To the law’s credit, the insurance mandates of the Affordable Care Act have largely reflected the advice of healthcare experts. Preventive services that are rated by the U.S. Preventive Task Force Services as “A” or “B” in terms of efficacy—such as blood pressure screenings and tobacco use counseling for pregnant women—must be covered by insurers at no cost. The government also mandated recommendations from the Clinical Preventative Services for Women, the expert report discussed in the previous paragraph. Some of the findings from this report have yet to be evaluated by the USPSTF, but no matter: The efficacy of the HHS contraceptive mandate was not a major component of the argument presented against it by the plaintiffs in Zubik v Burwell.

Following the implementation of the HHS mandate, Christians—Protestant and Catholic alike—balked because of moral opposition to contraception and/or direct sterilization. These critics first gained significant press attention with Burwell v. Hobby Lobby Stores, which the Supreme Court decided in 2014. In that case, the Court ruled that religious freedoms apply to closely held for-profit businesses. But even before Hobby Lobby, the United States Conference of Catholic Bishops spearheaded the opposition to the HHS mandate. While churches were exempt, non-profits and closely held for-profits were not, in spite of the fact that many of these organizations also had religious affiliations and moral objections to the mandate. For example, many hospitals, schools, shelters, and universities are run by religious groups and provide health insurance for their staff or students.

After the Court’s decision in Hobby Lobby, the Department of Health and Human Services (DHS) revised its requirements. The insurers or the government would cover contraception, and closely held for-profit or non-profit institutions with objections to the mandate would need only fill out paperwork to be exempted from paying for the coverage themselves. But the critics of the mandate were still not pleased. They observed that the new requirements actually tightened restrictions on companies like Hobby Lobby after the Supreme Court ruling in that case, and did not address other points of contention. For example, some critics argued that healthcare workers who have objections to contraception should be allowed to excuse themselves from these procedural hurdles.

So what happened in Zubik v. Burwell? “In Zubik, religiously affiliated non-profit organizations argued that the “ACA’s contraception benefit violated the Religious Freedom Restoration Act (RFRA) by substantially burdening their religious conscience.”[4] Recall that under the new rules these organizations only needed to notify their insurance carrier or the DHS to be exempt from paying for contraceptive coverage. Why would a group want to take a case all the way to the Supreme Court over a paperwork burden?

Simply put, religious organizations are squarely against violating their moral beliefs. For these institutions, “providing notice of their objections triggered the provision of contraception” by the government or private insurers, thereby making the religious organizations “complicit in [the] sin” of its provision. If the Court had decided that opting out constitutes a significant burden to religious conscience, then the Court would have needed to apply strict scrutiny, dramatically increasing the burden on the government to prove the necessity of the opt-out process.[5] With such a ruling, the Court would have been hard-pressed to justify the law and would likely have ruled against the ACA. However, the Supreme Court did not make a ruling, opting instead to send the case back to lower courts for resolution. Many have speculated that this case was headed for a 4-4 split since the death of Justice Scalia, and that the Court refused to give an opinion for this reason.

This non-decision, however, leaves the central questions of Zubik—“who decides when a religious burden is substantial?” and “what constitutes undue burden?”—unanswered. Until the Court has a full bench of nine justices, these issues will likely remain unresolved.

Reactions to the non-ruling have been mixed. In an interview with Buzzfeed, Obama gave these remarks:

The practical effect is right now that women will still continue to be able to get contraception if they are getting health insurance and we are properly accommodating religious institutions who have objections to contraception. I won’t speculate as to why they punted but my suspicion is if we had nine supreme court justices today there might have been a different outcome.[6]

President Obama’s words mirror the comments of the Supreme Court and Bishop David Zubik, the lead petitioner in the case, as well as those of other Catholics involved in the suit who believe this case will ultimately assure both religious freedom and access to contraception. Others were less satisfied, having hoped for a clearer decision. The president of Catholics for Choice criticized the Court for “refusing to stand up for the rights of individuals,” and the American Civil Liberties Union (ACLU) was “disappointed that the Court chose not to issue an opinion.”[7]


[1] See Obama’s speech on the ACA here.

[2] See this useful resource for understanding health insurance mandates.

[3]The full range of policy recommendations from the group can be found here, as well as the dissenting view of one expert.

[4] Sourced from the SCOTUSBlog symposium on the Zubik case, which may be found here.

[5] CrashCourse describes Strict Scrutiny: https://youtu.be/qKK5KVI9_Q8?t=3m26s

[6] Obama interviews with Buzzfeed: https://youtu.be/WVqZ269kUr8?t=27m6s

[7] For more of the ACLU’s statement, see this article.


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