In March, the Supreme Court heard oral arguments over what the Affordable Care Act's contraception mandate can require of religious employers. The case, set to be decided by the end of the term, could affect how millions of workers get access to contraception -- and how religious employers get around providing it.
But the case may also force the Court to address more than just access to the pill and family planning. At its heart, Zubik v. Burwell is a conflict over who determines when religious beliefs have been burdened and how far the government must go to accommodate the aggrieved faithful.
The Contraception Controversy
The Affordable Care Act and its implementing regulations require that employer-provided health insurance plans cover contraceptives -- except if the employer has religious objections. The religious exception was created after the Court's 2014 ruling in Burwell v. Hobby Lobby. There, the Supreme Court found that requiring closely held corporations, whose owners object to contraception because of their religious belief, to provide contraception coverage in their insurance plans violated the Religious Freedom Restoration Act.
Under the religious employer exception, employers can "opt out" of the contraception mandate by filling out a form (or even just writing a letter) stating they want no part in the provisioning of contraception. Once that's sent to their insurance provider or the Department of Health and Human Services, the insurance company and the government provide contraception coverage, wholly apart from the plan provided by the employers.
But, employers argue, the opt out procedure "triggers" their participation in the contraception program, in violation of their religious belief. If their claims are successful, the ACA's contraception rules would have to be reworked, once again.
The impacts of such a decision could be significant. More than 50 percent of employers qualify as the type of closely held companies that were at issue at Hobby Lobby; should even a small percentage of them find the opt out procedure religiously offensive, millions of female employees could be affected.
Who Determines Religious Burden?
But aside from the practicalities of balancing women's access to basic health care services with employers' freedom of religion, there is a bigger conflict at work. The case could force the Court to confront a fundamental question about government regulation and religious freedom: who decides when religious practice has been substantially burdened?
The religious employers believe that they decide. While the opt out procedures are simple, they make the employers complicit in a system they oppose -- and that belief should be enough, they argue.
That theory has been rejected by almost every circuit court. The Second Circuit's treatment of that argument was fairly representative. The substantiality of a burden on religious practice is an objective inquiry, the court explained; the plaintiffs' sincere religious beliefs aren't enough to make a burden substantial on their own. And when examining the ACA's opt out procedures, a "modicum of paperwork" simply isn't substantial.
But not everyone agrees. The Eighth Circuit, standing alone, wrote that, because of religious employers' "sincerely held religious beliefs, we conclude that compelling their participation in the accommodation process by threat of severe monetary penalty is a substantial burden on their exercise of religion."
Too Much for a Divided Court?
At oral arguments, it was clear that the Supreme Court was divided 4-4. Justice Kennedy, the swing vote, focused intently on less restrictive alternatives to the current procedures, indicating that he could already be convinced there was a substantial burden. (Under the Religious Freedom Restoration Act, proving a substantial burden is the first step; applying strict scrutiny to the burdening law, including determining if there is a less restrictive alternative, comes after.)
And if Justice Kennedy's emphasis wasn't enough, just a few days after oral arguments, the Court asked for additional briefing on possible alternatives -- even going so far as to suggest their own. As legal scholar Erwin Chemerinksy wrote recently, "I cannot think of another instance where the court has taken such a step of suggesting an alternative and asking for briefing on it."
Such a split could prevent the Court from reaching any real solution, let alone one that resolves the larger issues underlying the case.