May 16, 2016

Supreme Court Decides Zubik v. Burwell and consolidated cases

Zubik v. Burwell and several consolidated cases challenged a federal regulation requiring employers to cover certain contraceptives as part of their health plans unless they submit a form either to their insurer or to the federal government stating that they object on religious grounds to providing contraceptive coverage. The employers alleged that the notice substantially burdened the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993.

After the Supreme Court held oral argument, it requested supplemental briefing addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies without any such notice from petitioners.” In that supplemental briefing, both parties confirmed that such an option is feasible. The employers stated that their religious exercise was not infringed if they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive free contraceptive coverage from the same insurer. And the Government stated that procedures for employers with insured plans “could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

Based on those statements, the Supreme Court decided that the parties should be given an opportunity to come up with an approach that accommodates religious exercise while ensuring that women covered by the petitioners’ health plans receive contraceptive coverage. Thus, the Court vacated the lower courts’ decisions in all of the consolidated cases and remanded for further proceedings. The Court emphasized that it expressed no view on the merits of the cases and specified that it did not decide “whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”  

Per curiam.

Download Opinion of the Court.

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