Column: Renewed attacks on right to contraceptive coverage in Zubik v. Burwell

The United States Supreme Court in Washington, D.C. (Davis Staedtler/Creative Commons)

Amidst headlines about new, degrading attacks against Melania Trump and Heidi Cruz, there is other, less visible news American women should be seriously concerned about: this past Wednesday’s oral arguments in the case of Zubik v. Burwell before the Supreme Court.

Zubik v. Burwell is essentially the follow up case to the 2014 decision in Hobby Lobby – which expanded exemptions to the Affordable Care Act’s contraception mandate. The Affordable Care Act requires that all employer insurance plans include free coverage for contraception, and was updated in 2013 to include complete exemptions of the contraceptive mandate for churches, and an “opt-out” option for religiously affiliated non-profits, such as universities and hospitals.

These non-profits would have to fill out and submit a two-page form to the Department of Health and Human Services who, after removing such employers from the process, would still insure women get free contraceptive coverage through third-parties, at no cost to the non-profit.

Hobby Lobby extended this “opt-out” exemption, previously reserved only for religious non-profits, to apply to for-profit companies as well, whose owners may have personal, religious objections to birth control, arguing that even providing access to birth control would violate their religious freedom. 

Hobby Lobby remains a shocking affront to women’s equality and personal autonomy, a woman’s basic ability to make her own healthcare and reproductive choices, with access to contraception being a right that has fueled the changing role of women in society and strides towards equality beginning in the second half of the 20th century. 

For the plaintiffs in Zubik, however, this exemption does not go far enough. The plaintiffs wrote in their official petition to the Supreme Court that even the act of filling out the Department of Health and Human Services’ “opt-out” paperwork makes them “complicit in sin”, since “signing such a document facilitates moral evil” because their female employees will still get access to contraception. Furthermore, “although it takes only a few minutes, signing the self-certification form has ‘eternal ramifications.’" 

The Supreme Court’s decision will greatly depend on their interpretation of the Religious Freedom Restoration Act, as it did in Hobby Lobby. RFRA states “the government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the burden is necessary for the “furtherance of a compelling government interest” and is “the least restrictive means."

The Affordable Care Act’s contraception exemption criteria clearly align with these standards. The Obama Administration intentionally created such exemption rules to provide non-profit religious objectors an opt-out option, which through the simple filling-out of a form, a “least restrictive means necessary,” shifts the responsibility to the U.S. Department of Health and Human Services to fulfill a compelling government that cannot be understated: protecting a woman’s right to free and unhindered access to contraception (to give an idea of scale, women nationwide have saved over $1.4 billion on birth control pills since the ACA went to effect in 2012 (http://content.healthaffairs.org/content/34/7/1204.abstract)). 

The decision to extend this exemption to for-profit companies in Hobby Lobby, subjecting women’s healthcare decisions to their employers’ personal beliefs, was a gross overstepping. To side with the plaintiffs in Zubik and say that even the act of signing a form, in which employers state their very religious objections and rescind their involvement, violates religious freedom by ‘roundaboutedly’ condoning what they consider sinful behavior, would be a further mischaracterization with serious consequences. 

In determining whether the plaintiffs faced a “substantial burden”, the Court majority was deferential - with Justice Alito writing, the plaintiffs “sincerely believed” that providing access to birth control was a violation of their free exercise of religion, and that “it is not for us to say that their religious beliefs are mistaken on insubstantial.”  

Leaving the door open on what qualifies as a “substantial burden”, and not considering healthcare access and discrimination prevention as enough of a compelling government interest, is extremely troubling and simply out of balance. Furthermore, it inhibits the freedom of women from the religion of their employers, who should be under no obligation to adhere to their employers’ beliefs about their own personal choices. 

“Hobby Lobby opened the door to religious objections being use to diminish the rights of third parties, but Zubik will tell us if that’s actually going to happen,” Ian Millhiser of the Center for American Progress told Vox (http://www.vox.com/2016/3/23/11293504/zubik-burwell-birth-control-supreme-court-hobby-lobby). Zubik is a serious case all American women must watch.