Nonprofits, government move toward compromise on contraceptive mandate

(Photo by UpstateNYer / CC BY-SA 3.0 via Wikimedia Commons)

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A compromise may be possible between the federal government and faith-based nonprofits who claim the Affordable Care Act’s birth-control mandate violates their religious beliefs.

Both sides responded positively April 12 to a Supreme Court proposal that appears to ensure employees’ access to free contraceptives while guaranteeing their religious nonprofit employers may opt out of the process entirely.

The dispute is the heart of Zubik v. Burwell, a Supreme Court case combining seven lawsuits that challenge the Affordable Care Act’s requirement for contraceptive coverage. Some of the plaintiffs, including East Texas Baptist University and Houston Baptist University, resist involvement in providing so-called “morning after” drugs, which can terminate a pregnancy after conception.

The high court heard oral arguments in the Zubik case March 23. The court must determine if the contraceptive mandate violates the Religious Freedom Restoration Act, which prevents the federal government from substantially burdening the free exercise of religion unless it demonstrates it has a “compelling governmental interest” and does so in the “least restrictive” means possible.

The government previously offered religious nonprofits an opt-out procedure: The nonprofits would provide written notice of their religious objection. Then the burden of responsibility would shift to a third-party, the insurer, which would provide the contraceptives at no cost to the employer. But some of those nonprofits contended even providing written notice would make them indirectly complicit in the process.

Consider compromise

On March 29, the Supreme Court—apparently seeking to avoid a 4-4 tie decision in the absence of deceased Justice Antonin Scalia—asked attorneys on both sides of Zubik to consider a compromise. “The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners,” the order read.

The court received encouraging news from both sides April 12.

The nonprofits whose seven cases were consolidated into Zubik gave their full endorsement to the court’s proposal.


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Simple answer: Yes

“This court has asked the parties to address whether ‘contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees,’” their supplemental brief stated. “The answer to that question is clear and simple: Yes.

“There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner”—their employer.

“Moreover, so long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication—petitioners’ RFRA objections would be fully addressed,” the brief added.

Qualified endorsement

The Obama administration offered a more qualified endorsement of the court’s proposal.

The administration “mostly wants to keep the Affordable Care Act birth-control mandate as is, but signaled that it would reluctantly accept a modest change—even while arguing that it is not clear whether doing so would avoid ongoing court battles,” SCOTUSblog reported.

“The government brief … kept its argument close to what it has been all along,” SCOTUSblog said. “It contended that the changes it has previously made in the birth-control regulations provide religious non-profits with the assurance they need that they would not be involved in providing access to contraceptives for their employees. 

The government’s brief added, “If the court determines that the existing process for invoking the accommodation must be modified in some respect in light of (the nonprofits’) religious objections, it should make clear that the government may continue to require the relevant insurers to provide separate contraceptive coverage to (the non-profits’) employees” under other provisions in current regulations.

The Beckett Fund for Religious Liberty, which represents East Texas Baptist University and Houston Baptist University in the case, provided comment from those schools’ presidents.

“This case is about the freedom of all Americans to follow their faith,” ETBU President Blair Blackburn said. “At ETBU, we are proud to be part of the long tradition of Baptists in America, just as Roger Williams advocated for religious freedom and separation of church and state in colonial America and founded Rhode Island and the First Baptist Church in America.

“We simply ask the court to recognize that ETBU is a conscientious objector, and that the federal government is insisting that we act as a conscientious collaborator.”

“At HBU, our faith animates everything we do, including our emphasis on academic excellence,” HBU President Robert Sloan said. “We are hopeful that the Supreme Court will let us continue to serve our students and others.”


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