Challenges to the Federal Contraceptive Coverage Rule

As part of the Affordable Care Act, the federal government issued a rule that requires health plans to cover contraception without a co-pay. This rule is a tremendous step forward toward greater equality for women. The rule seeks to eliminate disparities in health care costs between men and women, and to remove barriers to access to contraception. Access to contraception is crucial for women to be able to decide whether and when to become a parent, which in turn allows them to participate equally in society.

Over one hundred cases have been filed challenging the rule as an infringement on religious liberty. These cases have been brought by both for-profit and nonprofit companies. In these cases, the ACLU is defending the anti-discrimination rule. While religious freedom gives us all the right to our beliefs, it doesn't give institutions or individuals the right to impose their beliefs on others or to discriminate.

Challenges by nonprofit employers: Under the contraception rule now in place, nonprofits with religious objections to covering contraceptives are provided an accommodation: these organizations may notify their insurers or the government (which will in turn notify the insurer) of their objection and the insurer must then arrange and pay for the contraceptive coverage separately. The accommodation was designed to ensure that employees would receive contraception coverage but the nonprofit employers with religious objections would not administer or bear the cost of the coverage. After the Court’s decision in Burwell v. Hobby Lobby, the federal government extended the accommodation to closely held for-profit companies with religious objections to providing contraception coverage.

In November 2015, the U.S. Supreme Court announced that it will hear cases brought by employers who have challenged the accommodation and believe it is a burden on their religious beliefs to fill out a form stating their objection. The documents filed in the Supreme Court can be found below.

Plaintiffs' Briefs

Zubik, et al. v. Burwell - Opening SCOTUS Brief

East Texas Baptist University, et al. v. Burwell - Opening SCOTUS Brief

Zubik, et al. v. Burwell - Reply SCOTUS Brief

East Texas Baptist University, et al. v. Burwell - Reply SCOTUS Brief

Amicus Briefs in Support of Plaintiffs

Amicus briefs filed in support of the petitioners can be found on SCOTUSblog.

Government's Brief

Zubik, et al. v. Burwell - Government SCOTUS Brief

Amicus Briefs in Support of the Government

Chart of amicus briefs filed in support of the contraceptive coverage requirement

Zubik, et al. v. Burwell - American Civil Liberties Union, et al.

Zubik, et al. v. Burwell - American Academy of Pediatrics

Zubik, et al. v. Burwell - American College of Obstetricians and Gynecologists, et al.

Zubik, et al. v. Burwell - American Humanist Association

Zubik, et al. v. Burwell - American Jewish Committee

Zubik, et al. v. Burwell - Americans United for Separation of Church and State

Zubik, et al. v. Burwell - Anti-Defamation League, et al.

Zubik, et al. v. Burwell - Baptist Joint Committee for Religious Liberty

Zubik, et al. v. Burwell - Black Women's Health Imperative

Zubik, et al. v. Burwell - Catholics for Choice, et al.

Zubik, et al. v. Burwell - Church-State Scholars

Zubik, et al. v. Burwell - Compassion & Choices

Zubik, et al. v. Burwell - Congress Members

Zubik, et al. v. Burwell - Center for Inquiry

Zubik, et al. v. Burwell - Center for Reproductive Rights

Zubik, et al. v. Burwell - Former State Attorneys General, Former DOJ Officials, Professors of Criminal Law

Zubik, et al. v. Burwell - Guttmacher Institute

Zubik, et al. v. Burwell - Harvard Law School Center for Health Law and Policy Innovation

Zubik, et al. v. Burwell - Health Policy Experts

Zubik, et al. v. Burwell - Lambda Legal, et al.

Zubik, et al. v. Burwell - Military Historians

Zubik, et al. v. Burwell - National Health Law Program, et al.

Zubik, et al. v. Burwell - National Latina Institute for Reproductive Health, et al.

Zubik, et al. v. Burwell - National Women's Law Center, et al.

Zubik, et al. v. Burwell - Normen Dorsen, et al.

Zubik, et al. v. Burwell - Ovarian Cancer Research Fund Alliance, et al.

Zubik, et al. v. Burwell - Religious Liberty Scholars

Zubik, et al. v. Burwell - Representative Robert C. Scott

Zubik, et al. v. Burwell - States

Eight of nine appeals courts (D.C., 2nd, 3rd, 5th, 6th, 7th, 10th and 11th) have ruled that filling out a form to ask for the accommodation is not a substantial burden on the employer’s religious beliefs. The Eighth Circuit is the only appeals court that has deemed the accommodation a substantial burden on the exercise of religion and determined at the early stage of the case that the accommodation is not the least restrictive means of furthering the government’s interests. All circuit decisions in the nonprofit cases can be found below.

Catholic Archdiocese of New York v. Burwell, 796 F.3d 207 (2nd Cir. August 7, 2015).

Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422 (3rd Cir. February 11, 2015).

East Texas Baptist Univ. v. Buwell, 793 F.3d 449 (5th Cir. June 22, 2015).

Mich. Catholic Conference v. Burwell, 807 F.3d 738 (6th Cir. August 21, 2015).

Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. May 19, 2015).

Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. July 1, 2015).

Grace Schools v. Burwell, 801 F.3d 788 (7th Cir. Sept. 4, 2015)

Dordt College v. Burwell, 801 F.3d 946 (8th Cir. Sept. 17, 2015)

Sharpe Holdings v. Burwell, 801 F.3d 927 (8th Cir. Sept. 17, 2015)

Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir. July 14, 2015).

Eternal Word Television Network v. Burwell, No. 14-12696, 2016 WL 659222 (11th Cir. Feb. 18, 2016)

Priests for Life v. U.S. Dep't of Health & Human Servs., 772 F.3d 229 (D.C. Cir. November 14, 2014)

Challenges by for-profit employers: On June 30, 2014 the Supreme Court held in Hobby Lobby and Conestoga Wood that closely held corporations can refuse to comply with the federal contraception rule based on their religious beliefs. Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).

In the wake of the Supreme Court’s decision, the administration proposed a new rule extending its accommodation to closely held for-profit corporations. That rule has not yet been finalized.

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The cases challenging the contraception rule are only one set of cases in which institutions and individuals are seeking an exemption from anti-discrimination rules, on the ground that the compliance with the laws violate their religious beliefs. There are cases of inns and bakeries closing their doors to same-sex couples and of religious schools firing employees who are unmarried and pregnant, for example, in the name of religion.