On March 23, the U.S. Supreme Court will hear arguments in Zubik v. Burwell, a consolidation of seven cases brought by religiously affiliated nonprofits that object to the federal government-provided accommodation to the contraceptive mandate in the Affordable Care Act, or ACA. Beyond further restricting reproductive rights, the Court’s ruling could affect the ability of all Americans to freely exercise their beliefs. The objectors in Zubik are opponents not only of contraceptives but of true religious liberty to which every citizen ought to have unfettered access.
In recent years, the term “religious liberty” has become distorted as conservatives attempt to cloak discrimination against women; lesbian, gay, bisexual, and transgender, or LGBT, individuals; and religious minorities as a defense of their own liberties. As conservatives lose ground on culture war issues, they are increasingly employing religious liberty arguments to circumvent laws that they disagree with. Religious liberty should not be the exclusive privilege of employers. Nor should it permit employers to impose their beliefs on their employees, many of whom hold different religious views and beliefs.
Accommodating religiously affiliated nonprofits
In 2013, President Barack Obama’s administration offered an accommodation for religious nonprofits that claim the ACA’s contraceptive requirement infringes on their religious rights. Organizations can submit a simple form or write a letter notifying the U.S. Department of Health and Human Services, or HHS, of their objection; HHS then facilitates health care coverage with the employer’s insurance company or another third party insurer to ensure that employees receive contraceptive coverage at no extra cost to themselves. Following the Burwell v. Hobby Lobby Stores, Inc. ruling in 2014, the accommodation was extended to closely held for-profit corporations, which could include up to 90 percent of U.S. businesses.
The federal government has made every effort to accommodate employers and secure comprehensive reproductive health care for women. Yet a small number of unsatisfied religious nonprofits—including universities, colleges, charities, and hospitals—refuse to accept this accommodation and insist that they be exempt from following the law. They claim that simply taking advantage of the existing accommodation violates their religious rights by making them complicit in facilitating coverage for reproductive health care to which they object. Specifically, the plaintiffs in Zubik argue that under the Religious Freedom Restoration Act, or RFRA, the religious liberty of institutions should trump that of students, employees, and their dependents.
Religious support for reproductive health care
The Little Sisters of the Poor—a charity run by Catholic nuns who care for the elderly poor—are among the plaintiffs who argue that the accommodation presents an undue burden on their religious beliefs. In their objection, the Little Sisters demand that their employees submit to their religious beliefs when it comes to health care.
Both religious and nonreligious women have the right to seek the best care for themselves in consultation with their health care providers and according to their spiritual and moral principles. People of faith overwhelmingly support reproductive health care, including contraception; 98 percent of sexually active Catholic women have used a contraceptive method other than natural family planning. Nine in ten Americans and an overwhelming majority of religious traditions—including at least 14 denominations spanning the ideological spectrum—support contraceptives as a moral good.
Limiting access to family planning services damages the health and well being of women, families, and communities. More than one million Americans work for Catholic institutions alone. A ruling for the nonprofits would undercut the values of 69 percent of women in the United States who support mandated insurance coverage for birth control.
Reinterpreting religious rights
In Hobby Lobby, the Supreme Court’s misinterpretation of RFRA expanded the scope of opt-out privileges that have historically only been afforded to religiously affiliated institutions. As a result, the ruling denied seamless coverage for reproductive health care to more than 20,000 employees, as well as their spouses and dependents. Zubik threatens to impose far worse harms by potentially limiting the reproductive health care access of hundreds of thousands of women, including the 533,152 full-time employees and 232,591 part-time workers employed by Catholic hospitals nationwide.
Nine lower appellate courts have already issued decisions on related cases brought by religious nonprofits. All but one ruled against the nonprofits and sided with the government, resulting in the circuit split that compelled the Supreme Court to take up Zubik. Even the ultraconservative U.S. Court of Appeals for the 5th Circuit ruled to uphold the accommodation and protect women’s access to birth control. “Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives,” the unanimous 5th Circuit opinion states. The law does not “entitle them to block third parties from engaging in conduct with which they disagree.”
An amicus brief on behalf of the Baptist Joint Committee for Religious Liberty argues that a win for the nonprofits “would produce absurd results that would discredit” RFRA. Further, it would endanger religious liberty by disrupting the balance necessary to maintain reasonable religious exemptions for religiously affiliated institutions.
Regrettably, the voices of women who could be most affected have not factored prominently in the debate over the contraceptive mandate. An amicus brief filed on behalf of 240 students, faculty, and staff at religiously affiliated universities asserts:
Whatever views petitioners or others may hold about contraception, they have no right to veto the government’s provision of benefits and thereby to strip these students, faculty, and staff of access to coverage for critical preventive care. This Court has never before recognized a free-exercise right, under RFRA or otherwise, to so thoroughly undermine the rights of third parties. It should not do so now.
A ruling in favor of Zubik would upset the equal rights of the nation’s diverse public to believe and act according to their own consciences. Forcing employees to abide by the theological beliefs of their employers when making health care decisions threatens their basic legal rights. And allowing employers to opt out of a federal law that ensures reproductive health care for millions of women prioritizes one brand of religion over many others. Properly applied, religious exemptions—those that maintain explicit and constitutional protections for people to practice their faith without causing harm to others—can be a public good. The exemption requested in Zubik, however, would be an abuse of religious liberty and a harm to women’s health.
Lauren Kokum is the Special Assistant for the Faith and Progressive Policy Initiative at the Center for American Progress.