Supreme Court Confirms No-Cost Contraceptive Coverage for Employees Without Deciding Religion Questions: Lambda Legal Says “We Need Nine”

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May 16, 2016
Jennifer C. Pizer
Today, the U.S. Supreme Court issued an opinion sending Zubik v. Burwell, the second major challenge to the Affordable Care Act’s birth control benefit, back to the lower courts for further proceedings.  The Court declined to resolve key legal questions.
Lambda Legal had filed a friend-of-the-court brief in Zubik and the six related cases the Court heard together, urging the Court to reject arguments made by religiously affiliated nonprofit organizations that it burdens their religious beliefs simply to notify the federal government that they are opting out of providing their employees insurance coverage for contraceptives under the Affordable Care Act (ACA).
Today’s decision means employees of these religious nonprofit employers should receive no-cost birth control coverage because these lawsuits can be taken as notice of the employers’ objections to this health insurance.  This is an important win for gender equality and public health.
At the same time, this way of handling these cases leaves unanswered the critical question whether the concept of religious freedom can be stretched beyond all recognition to validate the breathtaking, harmful overreach attempted here.
This should not have been a difficult legal question. Under prior case law – and common sense – it is not a substantial burden on anyone’s ability to practice their faith simply to have to tell the government you are opting out of a public program for religious reasons so others’ needs can be accommodated separately. 
Sadly, however, the federal Religious Freedom Restoration Act continues to be distorted and used in ways and contexts that harm others and were never intended when Congress passed that law.
The apparent inability of the short-staffed Court to rule on critical legal questions like this speaks eloquently to the need for the U.S. Senate to do its job and schedule hearings on President Obama’s nomination of Merrick Garland to fill the continuing vacancy on the Court.
Although today’s ruling leaves ambiguity about timing and contours of final procedures for birth control coverage, what is clear is that we need nine justices sitting on the U.S. Supreme Court.