A New York Times editorial examines the Supreme Court's upcoming case challenging an accommodation in the federal contraceptive coverage rules, stating, "The question in [Zubik v. Burwell] is a simple one: Do religious objectors get to disobey the laws they dislike, even when that places burdens on others?"
The editorial states that the case, which consolidates seven separate lawsuits, stems from "a dispute over the [Affordable Care Act's (ACA) (PL 111-148)] requirement that employers' health plans provide [no-cost] contraceptive coverage to their employees." The federal government offered "houses of worship" an exemption from the rules, and when not-for-profits that hold themselves out as religious and oppose contraception "argued that they, too, should be exempt, the administration offered them an easy way to opt out: Notify their insurer or the government, in writing, of their refusal to provide coverage." The editorial notes, "At that point, those organizations have no further role in the process" because federal law then requires that insurers provide contraceptive coverage with no co-pay.
The editorial notes that while the "accommodation struck a reasonable balance between the government's respect for religious freedom and its strong interest in carrying out the law's mandate," it was "not enough for many religious-affiliated employers, who said that the very act of notification makes them complicit in the provision of contraceptives and violates their religious freedom" under the Religious Freedom Restoration Act (PL 103-141) (RFRA). According to the editorial, RFRA "bar[s] any regulation that 'substantially' burdens religious practice, unless it furthers a compelling governmental interest that cannot be achieved by less restrictive means."
The editorial states that even after the Supreme Court's "misguided" ruling in Hobby Lobby, "the first seven federal appeals courts to consider the plaintiffs' argument in the current case rightly rejected it out of hand." The editorial points to one of those rulings, issued by Cornelia Pillard of the District of Columbia Circuit Court of Appeals, which held that the accommodation "requires as little as it can from the objectors while still serving the government's compelling interests."
The editorial contends, "This is clearly correct. Notifying the government of a refusal to provide birth-control coverage is not a substantial burden on religion, nor does that notification 'trigger' the coverage, which is already guaranteed under the law."
However, the editorial notes the 8th U.S. Circuit Court of Appeals in September 2015 "went the other way, holding in effect that the burden on the plaintiffs was substantial simply because they said it was." According to the editorial, "Such reasoning has no logical endpoint. The Zubik case is not about questioning anyone's religious beliefs; it is about how those beliefs must coexist within a large and religiously diverse nation."
"Although a 4-to-4 split between the court's conservatives and liberals on this case may be likely, it is not inevitable," the editorial states, citing the Supreme Court's majority opinion in the 2014 Hobby Lobby case that said the "notification process 'achieves all of the government's aims while providing greater respect for religious liberty.'" The editorial concludes, "The justices should heed those words and reject the plaintiffs' absurd argument" (New York Times, 3/21).
