On March 23, the Supreme Court heard arguments for the case Zubik v. Burwell. This case marks the fourth challenge to the Affordable Care Act (ACA), and it is a consolidation of seven lawsuits brought against Sylvia Burwell, President Obama’s secretary of Health and Human Services (HHS). Zubik draws one chief question before the Court: does the ACA violate the Religious Freedom Restoration Act (RFRA) by compelling religiously objecting non-profit organizations to violate their beliefs in compliance with its contraceptive mandate?
Passed in the House and Senate with over 97% support, the RFRA prohibits any federal or state government actor from substantially burdening a person’s exercise of religion. In accordance with this law, such a burden can only be implemented when the government is furthering a compelling interest in the least restrictive means possible. If the government does not explicitly exempt one of its laws from the RFRA’s reach, a burdened individual or entity can obtain relief under this statute. Ultimately, the RFRA was designed to serve as a solution to the problematic reality that conflicts between religious beliefs and federal codes can arise in unforeseeable ways.
Such an unforeseen conflict has surfaced from the ACA. As the petitioners argue, the ACA requires health insurance issuers to provide coverage for women’s “preventative care and screenings.” This section of the law has been interpreted by HHS to mandate the coverage of “the full range of Food and Drug Administration-approved contraceptive methods.” Employers who do not comply with this mandate are subject to heavy financial penalties. While there are exemptions from this regulation, religious non-profits are not absolved from compliance. An “accommodation” was granted to such organizations, yet, instead of exemption from providing contraceptive coverage, it outsources the non-profits’ compliance with the mandate to a third party provider.
It is never easy to predict how the Court will rule on a case, but it is simple to see the ramifications of a decision against the petitioners. Requiring non-profits run by nuns and priests to account for abortifacient drugs by any means is a blatant burden upon their free exercise of religion. The petitioners argue that the government has not established a legitimate compelling interest for denying these groups exemption, thus there is substantial reason to believe that this ACA provision is in conflict with the RFRA. Ultimately, the Court’s decision will either promote religious liberty or institutionalize religious persecution.