With headlines like “53 Percent Say Making Nuns Participate in Obamacare Birth Control Mandate is Unfair,” the conservative Christian press has found its angle on Zubik v. Burwell. For the rest of us, here’s a way through the legal thicket.
Two weeks ago, following oral argument in the latest challenge to the Affordable Care Act’s (ACA) contraceptive mandate, the Supreme Court issued an unusual order. Acting more like a mediator than the nation’s highest court, it asked the parties to try and find a compromise solution that would ensure employees and their families receive cost-free contraceptive coverage without a burdening the employers’ religious beliefs.
The case, Zubik v. Burwell, involves a number of religious nonprofits that object to the existing religious accommodation they receive under the ACA. The current accommodation allows religious employers that do not wish to provide birth control coverage to their employees to opt out by submitting a form to the federal government. If they do this, the government requires the nonprofit’s insurance company or third party administrator to provide separate contraceptive coverage. Religious organizations like Little Sisters of the Poor—those headline-friendly nuns—argue that even this workaround violates their religious liberty, because providing the form makes them complicit in the provision of birth control. They claim that the accommodation violates their rights under the Religious Freedom Restoration Act (RFRA), a federal statute enacted in 1993 which forbids the federal government from burdening religious exercise unless there is no less burdensome way to achieve a compelling government interest.
The Supreme Court order asked both sides to file supplemental briefing on “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”
In other words, is there a way to give both sides what they want?
The religious nonprofits responded confidently in their brief, “[t]he answer to that question is clear and simple: Yes.” Unfortunately, what follows is a convoluted “no.” The alternatives put forward by the petitioners include contraceptive-only insurance plans that do not currently exist, would create significant state and federal regulatory challenges (for one, they may not be enforceable contracts under some state laws), would limit access to contraceptives—and which the organizations would in fact still oppose.
The petitioners’ brief explains that “at a minimum,” an acceptable solution would require “two separate health insurance policies (that is, the group health insurance policy and the individual contraceptive coverage policy)” with “separate enrollment processes, insurance cards, payment sources, and communication streams.” Unlike the current accommodation that provides for “seamless” birth control coverage, the brief states “if the contraceptive coverage is to be truly separate, not just an automatic and unavoidable component of the petitioner’s plan, then it must have an enrollment process that is distinct from (and not an automatic consequence of) enrolling in the employer’s plan.”
In other words, employees would have to opt in to coverage, which the government has repeatedly explained will result in lower rates of access and use.
Acknowledging that contraceptive-only plans do not actually exist, the brief proposes that the government “require or incentivize commercial insurance companies to make separate contraceptive coverage plans.” Further, “[t]o the extent there are any concerns about the financial stability of a contraceptive-only plan that charges no premiums and cannot pass on any of its costs,” it suggests that the government subsidize the plans (never mind that Title X, a program which currently provides reproductive health care to low-income patients, is chronically underfunded). The brief dismisses other administrative and legal problems that such a system would create, in one instance simply claiming the “Court should discount any asserted concerns about financial or practical difficulties that might ensue should large numbers of petitioners’ employees opt for separate coverage.”
Here are four big problems with what they propose:
#1: no contraceptive-only insurance plans exist!
Moreover, we don’t know whether such plans could exist, whether they would conflict with state laws, or how they would be created, administered, and funded. It’s a completely unfeasible interpretation of RFRA to allow petitioners to demand a “less restrictive” alternative that could conceivably work in theory. The alternative must be one that will actually work in practice.
#2: It will impose burdens on employees and their families.
The proposed scheme would require employees to opt-in for contraceptive coverage. Throughout litigation, the government has emphasized that even seemingly minimal barriers to contraceptive coverage result in less access to and use of birth control. Further, requiring employees to opt-in to coverage would allow employees to cut off access to contraception for their covered family members.
#3: It will reduce access to contraceptive and non-contraceptive women’s health care.
Women generally receive annual care, including a pap smear, breast exam, STI testing and treatment, blood pressure test, and contraceptive counseling, from the same doctor during the same appointment. This makes the idea of a “contraception only” plan very different from other services like dental or vision plans—contraception is an integral part of women’s health care. By requiring employees to find doctors who accept each of their two plans, and then schedule two different appointments, the petitioner’s suggestion essentially doubles the barriers to accessing necessary healthcare. This may not seem like a hefty burden, but for women balancing childcare and low-wage jobs, and who may have limited paid sick time, it is significant.
#4: The religious nonprofits would oppose their own plan.
After laying out a supposed less restrictive alternative, the petitioners’ brief adds “[t]o be clear, that is not to say that petitioners endorse such an approach as a policy matter.” It notes that many of the nonprofits believe contraception to be “immoral,” and therefore “may disagree as a policy matter with government programs, such as Title X, that make contraceptives or abortifacients more widely available to their own employees or anyone else.” Moreover, the brief states that “petitioners certainly have the right, protected by the First Amendment, to make that disagreement known.”
What this means is that while petitioners are suggesting that the government adopt entirely new laws and regulations regarding contraceptive coverage, and allocate additional funding for contraception, they will nevertheless continue to lobby (and perhaps litigate) against these very actions.
Requiring the government to come up with an entirely new legal and regulatory alternative any time it places a substantial burden on religion—regardless of political, legal, or administrative feasibility, cost, or potential impact on third parties—is a scary prospect. This is especially true considering the weak “substantial burden” test the Court adopted in Hobby Lobby, which defers almost entirely to the religious objectors’ assessment of whether they have been burdened. Such an immoderate interpretation of RFRA would give religious objectors the power to upend complex laws and programs that are created to benefit the public at large.
Let’s say, for example, a company like Hobby Lobby had a religious objection to minimum wage laws. Under the petitioner’s argument, a less restrictive way for the government to achieve its goal of guaranteeing a living wage would be to allow the company to pay subpar wages and pass a new law allocating funds to pick up the remaining tab. A religious objection to environmental regulations? Pollute away and suggest that the government to create, fund, and administer a new program to clean up the mess. A religious objection to posting OSHA notifications? Tell the government to hire workers to chase down the company’s employees and warn them about environmental hazards they may face at work.
All of these solutions would certainly be less burdensome on the employer. They also happen to be expensive, inefficient, impractical, and bordering on absurd. Moreover, they are likely to create financial and administrative burdens not just for the government, but for the company’s employees and the public. And since they are merely suggestions for less restrictive alternatives rather than mandates, Congress could decide that passing a new law is simply not worth the trouble.
The petitioner’s proposed plan is not a less restrictive alternative. It’s a less restrictive fantasy, and turns RFRA’s balancing test into a trump card for religious believers.