Today, Legal Voice joined the National Women’s Law Center and 67 other organizations in filing a “friend of the court” brief to the U.S. Supreme Court in the latest round of cases attacking the Affordable Care Act’s contraceptive coverage mandate. Seven different challenges from objecting employers have been consolidated into one case, Zubik v. Burwell.

The consolidated cases challenge the Affordable Care Act’s provisions requiring that insurance plans cover contraceptives without any additional costs to individuals, such as co-payments or deductibles. The rules implementing the contraceptive benefit included an accommodation for certain non-profit organizations with religious objections to birth control. The objecting entity may opt out of including birth control in its employer- or school-based insurance plan by filling out paperwork to notify either its insurance plan or the federal government of its objections, and the insurance company separately provides the benefit directly to the women without the participation of the objecting employer.

Petitioners, non-profit employers and schools, claim that the accommodation itself violates the federal Religious Freedom Restoration Act (RFRA). RFRA, which you may remember from the Hobby Lobby case in 2014, prevents the government from imposing a substantial burden on the exercise of a person’s religious beliefs unless it furthers a compelling government interest and uses the least restrictive means for advancing that interest.

Petitioners claim that despite carefully crafting their insurance plans to exclude coverage for abortifacients, contraceptives, and sterilization, the government’s regulations force them to both (1) sign and submit documentation that authorizes, obligates, and incentivizes their insurance companies to deliver coverage to plan beneficiaries, and (2) maintain health plans and ongoing insurance relationships through which the objectionable coverage is provided.

The National Women’s Law Center’s brief argues that the accommodation does not substantially burden religious exercise, as seven of the eight federal circuit courts of appeals to consider the question have held. In addition, the amicus brief argues that the contraception regulations further the compelling governmental interests in protecting women’s health and promoting gender equality. Contraception advances the health of women and children, and without cost-free coverage, access to these health benefits is impeded. Finally, the brief argues that the accommodation is the least restrictive means available for advancing the government’s compelling interests. All of the alternatives proposed by petitioners – including offering contraception-only plans, sending affected women into the ACA marketplace to purchase coverage, providing tax credits to consumers or incentives to manufacturers, or expanding “single-payer” public programs – would reinstate barriers that the ACA and contraception regulations were designed to remedy. These alternatives would all leave the affected women in a worse position than both male co-workers and women who work for non-objecting employers.


Read the amicus brief