Zubik v. Burwell Could Have Wide-Ranging Consequences

Slate (March 22, 2016): Zubik v. Burwell, the Latest Challenge to the ACA's Contraception Mandate Could Have Wide-Ranging Consequences, by Dahlia Lithwick:

On Wednesday, the Supreme Court will hear oral argument in Zubik v. Burwell.  Dahlia Lithwick argues that in many ways Zubik is as important a case as Whole Women's Health v. Hellerstedt because the "challenge sets up a dramatic new effort to curb civil rights laws by way of religious veto.  The result will not implicate merely birth control but also gay rights and racial discrimination."

In Zubik, religious non-profits challenge the accommodation offered to them so that they can avoid providing employees contraception that is otherwise required under the Affordable Care Act.  The accommodation allows the employers to send a letter or fill out a form stating that they have a religious objection to providing coverage.  Insurance companies then provide the contraceptive benefit themselves using separate funds.  The accommodation has been challenged under the Religious Freedom Restoration Act which prohibits the government from imposing a "substantial burden" on the exercise of religious beliefs unless the burden is the "least restrictive means" to achieve a "compelling government interest."

In a Washington Post op-ed Laycock noted that, according to the logic of their lawsuit, no form of accommodation could satisfy the religious employers. “[T]heir real objection is to what their secular insurers are required to do,” Lacycock writes. “The religious objectors demand a right to control how the government regulates insurance companies.” In part, the religious objectors are arguing that the government is conceding that its purposes can’t be all that compelling by offering an accommodation in the first place, which Laycock reasonably contends will deter future accommodations and imperil real religious liberty.

Lithwick notes that the religious non-profits appear to be seeking a "general veto power over other people's rights" and that their arguments are inconsistent with the way that religious accommodation has been historically understood.