The U.S. Supreme Court will hear oral arguments March 23 in a case that pits the federal government against religious employers who oppose contraceptive use.

Zubik v. Burwell centers on whether an accommodation under the Affordable Care Act’s contraceptive mandate is enough to protect the religious freedoms of nonprofit employers with strongly held religious beliefs.

The ruling in Zubik will have broad implications for contraception care nationwide and the way in which the Religious Freedom Restoration Act (RFRA) is applied going forward, said Laurie Sobel , a senior policy analyst for the Henry J. Kaiser Family Foundation.

“Ultimately, if the court were to rule in favor of Zubik, it would mean the workers and dependents of nonprofits are at risk of losing some or all contraceptive coverage,” Ms. Sobel said during a March 16 Kaiser press briefing . “The burden on women to pay out of pocket has [been] shown to really limit their choices and possibly limit [all] contraceptives for them.”

The ACA’s accommodation clause refers to an exception for organizations that oppose coverage for contraceptives but are not exempted entities, such as churches. The plaintiffs – part of seven consolidated cases that include a Catholic bishop and an order of nuns – argue that the opt-out process put in place by the government makes them complicit in offering contraception coverage indirectly.

The government contends that the exception does not impose a burden on the groups and that courts should not disregard the interest of employees who may not share their employers’ religious beliefs. The 8th U.S. Circuit Court of Appeals struck down the exception twice, ruling that forcing organizations to offer contraceptive coverage – even indirectly – violates their religious rights. The 8th Circuit’s decisions are at odds with rulings by the 2nd and 5th Circuit courts.

The case comes down to whether the plaintiffs can prove the accommodation places a substantial burden on their religious conduct, and if so, whether the government can prove its provision is the least restrictive means of advancing a compelling interest, said Marci A. Hamilton , a law professor at the Benjamin N. Cardozo School of Law, Yeshiva University, New York.

“[If the court sides with Zubik], one possible precedent this could set is that religious objectors – the employers in these cases – will be able to limit independent third-party actions,” Ms. Hamilton said during the media conference. “It doesn’t matter the faith. You can have your decisions about birth control and the cost and reproductive care determined by the faith of your employer.”

A ruling for Zubik would also throw a monkey wrench in the country’s long tradition of legislative accommodations, Ms. Hamilton said, noting that there are many laws that include accommodations for certain populations.

“That means the legislative weighing of harm and safety is going to be pushed aside and essentially, we’re going to be talking about, how can every single law including the accommodations be fine-tuned for one set of believers?”

The recent death of Associate Justice Antonin Scalia , who was the court’s most outspoken conservative, could significantly impact the case’s outcome, analysts said. Justice Scalia was among majority in the 5-4 decision in Burwell v. Hobby Lobby , a 2014 opinion that protected religiously devout owners of closely held, for-profit businesses from having to offer birth control under the mandate. His absence could mean a 4-4 split in the Zubik case, which would allow the lower court rulings to stand, said Lyle Denniston , a Supreme Court analyst who writes for SCOTUSblog.

“My own sense is that the court is going to try very hard to find a way to resolve this case without a 4-4 split,” Mr. Denniston said during the Kaiser media conference. “If the Supreme Court issues a 4-4 decision, that leaves division in the lower courts, and it will vary from region to region in the country as to what the rights for women under the ACA are.”

More than 70 briefs have been issued to the high court in support of or opposition to the plaintiffs, including pleas by religious organizations, women’s advocacy groups, law professors, medical associations, and attorneys.

The American College of Obstetricians and Gynecologists and the American Academy of Family Physicians wrote in a joint brief that contraception coverage under the ACA ensures that patients have access to medically appropriate contraception without regard to their ability to pay. At the same time, the law respects an employer’s sincerely held religious objections to contraception through the accommodation, the brief said.

However, the Council for Christian Colleges & Universities argues the government’s decision to exempt some religious employers from providing contraceptive coverage while requiring others to comply with the mandate “demonstrates that the government’s approach is not the least restrictive means necessary to advance its interests.”

“Civil rights should not vary based on whether that institution is or is not affiliated with a church or other house of worship,” the council wrote in its brief to the Supreme Court. “Religious exercise is not tied to one’s affiliation but rather the source and sincerity of one’s belief and the desire to exercise it. That truth appears to be one the government has been unable to grasp or comprehend as it decides who is sufficiently ‘religious’ to have religious beliefs worthy of protection.”

agallegos@frontlinemedcom.com

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