Religious Freedom Claim in Zubik v. Burwell Should, and Likely Will, Fail

Medicine health care contraception and birth control. Oral contraceptive pills empty pack
Medicine health care contraception and birth control. Oral contraceptive pills empty pack

The latest challenge to the Affordable Care Act's contraception mandate, Zubik v. Burwell, will be argued before the Supreme Court on March 23--exactly six years after President Obama signed the ACA into law. The case, the latest in an onslaught of efforts to deprive women of access to basic preventive care, was brought by a group of religiously affiliated nonprofit organizations who make the tenuous argument that filing paperwork to obtain a religious exemption from the mandate imposes a "substantial burden" on their religion. The nonprofits say their belief that filing the paperwork causes them to sin, which no doubt is sincere, automatically means the paperwork imposes a substantial burden on religion under the Religious Freedom Restoration Act (RFRA). They have it all wrong, and in a new ACS Issue Brief, Professor Caroline Mala Corbin explains why.

First, let's get one thing straight: Organizations like the petitioners in Zubik are not required by the ACA to provide contraceptive coverage to their employees. All they have to do is note their religious objection, and a health insurance company or third-party administrator provides coverage through a completely separate policy. The insurance company cannot charge the nonprofit for any of the costs of coverage, and it must separately provide notice of coverage to the nonprofit's employees, clarifying that the nonprofit plays no part in that coverage. The religious organization is completely extricated from the process.

Still, the petitioners believe that by merely signing a form or sending a letter to extricate themselves, they are facilitating sin. Furthermore, they argue this belief is what informs the substantial burden determination as a matter of law. This, Professor Corbin explains, is entirely wrong. Under RFRA, it is the job of courts to objectively evaluate what constitutes a substantial burden on religion. Otherwise, any sincerely held religious belief could be used to nullify federal law.

Corbin explains, "while courts may not draw conclusions about the objector's religion, they should draw conclusions about the underlying legal or . . . factual bases for the religious claims." So, while the Supreme Court may not tell the petitioners that their sincerely-held belief is wrong, it may rule that their claims are incorrect as a matter of law. And indeed they are, because filing paperwork is not what causes contraception coverage to be offered to employees--the ACA does that. The federal legislation, not the paperwork filed by employers, is what creates the insurance company's obligation to cover contraception.

The argument made by petitioners in Zubik is an untenable one. But even if the accommodation process were somehow found to constitute a substantial burden on religion, the contraception mandate would likely still stand. That's because the legislation is narrowly tailored to meet a compelling government interest--protecting the health of female workers. Contraception, it is widely understood, is essential to women's autonomy, equality, and physical wellbeing--and women are essential to the U.S. economy. It is time for the Court to put these anti-woman arguments to bed once and for all.