ACLU Responds to Supplemental Briefing in Zubik v. Burwell Supreme Court Case

WASHINGTON — The United States Supreme Court yesterday received supplemental briefs in Zubik v. Burwell, a case brought by religiously affiliated nonprofit organizations that object on religious grounds to the Affordable Care Act’s requirement that health insurance companies cover contraception and to the process by which these employers can opt out of providing the coverage.

ACLU Senior Staff Attorney Brigitte Amiri responded with the following:

“The employers’ brief says it endorses the Court’s suggestion that contraception coverage should be provided by the employees’ insurance company. In fact, the employers ‘accept’ the Court’s proposal by rewriting it to include so many caveats and limitations that the inevitable real-world consequence will be to leave tens of thousands of employees and students without contraception coverage. What the employers propose is not a least restrictive alternative, but a less available contraception plan.”

A religiously affiliated non-profit organization or a closely held for-profit corporation can currently lodge an objection with its insurer or the federal government. The insurance company then provides contraception coverage directly to the employees in a separate insurance plan. Zubik v. Burwell is a consolidation of seven cases from lower Courts. To date, nine circuit courts have addressed the argument before the Court – that the opt-out process violates the federal Religious Freedom Restoration Act (RFRA). Eight, including the four that heard the cases before the Court, have rejected the claim.

This case is one occasion in which institutions are arguing their religion beliefs entitle them to discriminate or to deny services. More than 100 bills have been introduced in 2016 alone that threaten to allow public officials and businesses to turn people away because of who they are.