The Affordable Care Act and its implementing regulations require group health insurance plans and health insurance issuers to cover women's preventive care, including the provision of contraceptive services. If an employer's health plan does not include the required coverage, the employer will be subject to economic penalties. Certain religious employers, such as houses of worship, are exempt from this requirement. Other religious employers, for example hospitals or certain closely held for-profit corporations, are entitled to an opt-out "accommodation" if they notify the government of a religiously based objection to the services in question and provide the government with their insurer's or third-party administrator's contact information. If a religious employer invokes the accommodation, the cost of any contraceptive services will be passed on to the employer's insurer, third-party administrator, or the government. The employer will not be liable for any of these costs.
This week, the Supreme Court will hear oral arguments in seven consolidated cases (Zubik v. Burwell) brought by religious employers who challenge the above-described accommodation as a violation of the Religious Freedom Restoration Act ("RFRA"). That stature prohibits the federal government from imposing a substantial burden on any person's free exercise of religion unless doing so represents the least restrictive means of advancing a compelling governmental interest. The plaintiffs in each of these cases are religious non-profit or for-profit employers. They object to the provision of contraceptive services on religious grounds. None of them is eligible for the statutory exemption, but each is eligible for the accommodation. Nonetheless, they claim that the terms of the accommodation violate RFRA by imposing a substantial burden on their religious practices. They argue that their religious rights are substantially burdened by requiring them to provide the government with the contact information of their respective insurers or third-party administrators. This, they argue, forces them to participate in the delivery of the objectionable coverage to their beneficiaries. In essence, they argue that the government's offer to accommodate their religious practices, in fact, violates those practices.
Under Burwell v. Hobby Lobby, 134 S.Ct. 2757 (2014), a federal law "substantially burdens" a religious practice if that law dictates that religious adherents must take (or forgo) any action contrary to their sincere religious beliefs. The substantial-burden standard is met, therefore, if the government demands that a religious adherent engage in conduct that "seriously" violates her religious beliefs by imposing substantial economic consequences on her choice to adhere to those beliefs. According to the plaintiffs, this test is met here as the government is forcing them to pay heavy economic penalties if they insist on providing insurance coverage only in accordance with their religious beliefs.
The government disagrees, and argues that the plaintiffs do not face the stark and burdensome choice between providing the religiously objectionable services or paying a significant penalty for refusing to do so. Rather, the choice facing the plaintiffs is between seeking an accommodation from the government by providing it with insurance-related contact information or paying the designated penalty. Any burden imposed by this choice is slight and indirect.
Of the five federal courts of appeals that have addressed this issue, four have sided with the government (the seven consolidated cases come from these courts). In so ruling, these courts have explained that the government's arrangements with third parties do not impose a substantial burden on plaintiffs cognizable under the RFRA. Borrowing from Hobby Lobby, one could say that the reporting requirement does not "seriously" invade a religious practice. This seems correct, almost obviously so. There is no doubt that the government could require all employers to provide the government with information relevant to health care coverage, including contact information regarding the insurance or third-party coverage of its employees. The government could also ask a religious employer to let it know if it would like an accommodation in the context of contraceptive services. How else would the accommodation be made available? Why the government can't ask those questions at the same time without substantially burdening a religious practice is, at the very least, puzzling.
The plaintiffs insist that they alone can determine whether any particular action violates their religious beliefs. They argue that the very act of providing the government the required insurance-related information makes them participants in the provision of the objectionable services. They cite Hobby Lobby for the proposition that whether a particular action makes a plaintiff complicit in sin is "a difficult and important question of religion and moral philosophy" that should be left to the religious objector to decide. The Eighth Circuit, the only appellate court to find that the accommodation violated RFRA, agreed. It therefore concluded that reporting requirement imposed a substantial burden on the plaintiff's sincere religious beliefs. The other four appellate courts to have addressed this issue, concluded otherwise. They explained that this approach improperly collapses the distinction between a sincerely held belief, which is not subject to judicial examination, and the substantiality of the burden on that belief, which is. Were it otherwise, the word "substantial" would be rendered meaningless since its satisfaction would depend entirely on the assessment of the religious objector. All interferences with a religious practice, direct or indirect, would automatically satisfy the statutory standard.
Oral arguments are scheduled to take place this Wednesday at 10 AM EST. Without Justice Scalia, the eight-person Court might well split 4-to-4. If one takes the 5-4 vote in Hobby Lobby as an indicator of the relative positions of the Justices, that would not be a surprising result. On the other hand, the Hobby Lobby addressed a very different issue pertaining to whether RFRA protected the religious liberty of a closely held, for-profit corporation. The issue here focuses on the "substantial burdens" prohibition and it would not be surprising if the dissenters in Hobby Lobby would be joined by one or more members of the Hobby Lobby majority in upholding the accommodation reporting requirement.