Challenges to the Federal Contraceptive Coverage Rule

As part of the Affordable Care Act, the federal government issued a rule that requires health plans to cover contraception without a co-pay. This rule is a tremendous step forward toward greater equality for women.  The rule seeks to eliminate disparities in health care costs between men and women, and to remove barriers to access to contraception.  Access to contraception is crucial for women to be able to decide whether and when to become a parent, which in turn allows them to participate equally in society. 

Over one hundred cases have been filed challenging the rule as an infringement on religious liberty. These cases have been brought by both for-profit and nonprofit companies. In these cases, the ACLU is defending the anti-discrimination rule. While religious freedom gives us all the right to our beliefs, it doesn't give institutions or individuals the right to impose their beliefs on others or to discriminate.

Challenges by nonprofit employers: Under the contraception rule now in place, nonprofits with religious objections to covering contraceptives are provided an accommodation: these organizations may notify their insurers or the government (which will in turn notify the insurer) of their objection and the insurer must then arrange and pay for the contraceptive coverage separately.  The accommodation was designed to ensure that employees would receive contraception coverage but the nonprofit employers with religious objections would not administer or bear the cost of the coverage.  After the Court’s decision in Burwell v. Hobby Lobby, the federal government extended the accommodation to closely held for-profit companies with religious objections to providing contraception coverage.

In November 2015, the U.S. Supreme Court announced that it will hear cases brought by employers who have challenged the accommodation and believe it is a burden on their religious beliefs to fill out a form stating their objection.  The documents filed in the Supreme Court can be found below.

       Zubik, et al. v. Burwell - Opening SCOTUS Brief

       East Texas Baptist University, et al. v. Burwell - Opening SCOTUS Brief

       Amicus briefs filed in support of the petitioners can be found on SCOTUSblog.

Leading up to the Supreme Court’s announcement, seven of eight appeals courts (D.C., 2nd, 3rd, 5th, 6th, 7th, and 10th) had ruled that filling out a form to ask for the accommodation was not a substantial burden on the employer’s religious beliefs.  The Eighth Circuit is the only appeals court that has deemed the accommodation a substantial burden on the exercise of religion and determined at the early stage of the case that the accommodation is not the least restrictive means of furthering the government’s interests.  All circuit decisions in the nonprofit cases can be found below.

Catholic Archdiocese of New York v. Burwell, 796 F.3d 207 (2nd Cir. August 7, 2015).

Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422 (3rd Cir. February 11, 2015).

East Texas Baptist Univ. v. Buwell, 793 F.3d 449 (5th Cir. June 22, 2015).

Mich. Catholic Conference v. Burwell, No. 13-2723, 2015 WL 4979692 (6th Cir. August 21, 2015).

Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. May 19, 2015).

Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. July 1, 2015).

Grace Schools v. Burwell, No. 14-1430, 2015 WL 5167841 (7th Cir. Sept. 4, 2015)

Dordt College v. Burwell, No. 14-2726 (8th Cir. Sept. 17, 2015)

Sharpe Holdings v. Burwell, No. 14-1507 (8th Cir. Sept. 17, 2015)

Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir. July 14, 2015).

Priests for Life v. U.S. Dep't of Health & Human Servs., 772 F.3d 229 (D.C. Cir. November 14, 2014)

Challenges by for-profit employers: On June 30, 2014 the Supreme Court held in Hobby Lobby and Conestoga Wood that closely held corporations can refuse to comply with the federal contraception rule based on their religious beliefs. Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).

In the wake of the Supreme Court’s decision, the administration proposed a new rule extending its accommodation to closely held for-profit corporations.  That rule has not yet been finalized.   

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The cases challenging the contraception rule are only one set of cases in which institutions and individuals are seeking an exemption from anti-discrimination rules, on the ground that the compliance with the laws violate their religious beliefs. There are cases of inns and bakeries closing their doors to same-sex couples and of religious schools firing employees who are unmarried and pregnant, for example, in the name of religion.


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