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Reproductive Rights at the Court: Contraceptive Coverage for Religious Non-Profits

Reproductive Rights at the Court: Contraceptive Coverage for Religious Non-Profits

There has been a lot of buzz about some of the cases that the Supreme Court will take up this term. Two of these cases are about issues concerning reproductive rights, and could bemajor decisions with significant impact on women’s healthcare in our country. The first of these cases, Zubik v. Burwell, a follow up to Burwell v. Hobby Lobby Stores (2014), focuses on the accommodation for religious non-profits and providing contraceptive coverage for their employees. Stay tuned next week for a blog on the case from Texas on access to abortion, Whole Woman’s Health v. Cole.  

The Current Landscape: Under the Affordable Care Act (ACA)’s contraception rule many employers are required to offer contraceptive coverage (birth control, etc.) to their employees. Houses of worship, such as churches, are exempt from this requirement, and religious non-profit organizations and certain for-profit organizations that closely hold religious beliefs are eligible for an accommodation that allows them not to directly pay for or provide contraceptive coverage for their employees. Instead, if they wish, employees can receive coverage directly from a third-party insurance provider.

Across the country, several different religious non-profits have challenged the current rule in federal court under the Religious Freedom Restoration Act (RFRA), claiming that the current rule imposes a substantial burden on their religious beliefs. These organizations argue that signing a form or sending a letter to the government that states their opposition to providing some or all forms of contraception, which triggers the accommodation process, makes them complicit allowing access to something to which they have sincere religious objections.

Most of the rulings sided with the government, stating that the ACA accommodation requires very little from the religious non-profits, and is still able to serve the government’s compelling interest of providing women with access to contraception through health insurance. However, one appeals court ruled with the religious non-profits, stating that the federal government cannot require religious non-profits to comply with the current accommodation rule. This split between court’s decisions on the same matter has caused the Supreme Court to take up these cases.

Core Questions of the Case: Seven different religious non-profit cases have been taken up by the Supreme Court, and have been consolidated into a single case Zubik v. Burwell. The Supreme Court will address whether the current ACA contraception mandate, with the available accommodation for religious non-profits, violates RFRA, which requires that if the government “substantially burdens” a person’s religious beliefs, it must be to further  a “compelling governmental interest” in the “least restrictive means” of fulfilling that interest.

The government has described their compelling interest as providing women with “full and equal benefits of preventive health coverage.”

What’s at Stake: The Reform movement has a strong and long-standing history of supporting the separation of church and state, religious freedom, and women’s health. We played a key role in passing the Religious Freedom Restoration Act in the 1990s, and believe that the current ACA accommodation for religious non-profits wisely and delicately balances religious liberty with a woman’s right to make her own healthcare decisions. The Supreme Court’s upcoming decision in Zubik v. Burwell could affect countless women who are employees of religious non-profit organizations.

The Union for Reform Judaism and the Central Conference of American Rabbis joined an amicus brief filed by the American Jewish Committee (AJC), which focuses on the question of substantial burden. Women of Reform Judaism joined an amicus brief authored by the National Women’s Law Center, which argues that the contraception accommodation serves the government’s compelling interest in providing contraceptive coverage in the least restrictive means available. Further, the alternatives would impede the compelling interest of public health and gender equality, and burden women who need contraceptive coverage.

The Supreme Court will be hearing oral arguments for Zubik on Wednesday March 23. Be sure to check back with our blog for a recap of oral argument.

For updates as Zubik v. Burwell moves through the Supreme Court, keep visiting the RAC’s blog. To learn more, visit the RAC’s issue pages on church and state and reproductive rights. For additional information about Zubik v. Burwell, read this article on the SCOTUS blog.


Tracy Wolf was a 2015-2016 Eisendrath Legislative Assistant at the Religious Action Center of Reform Judaism (the RAC), and currently serves as the RAC's Leadership Development Associate. Originally from Syosset, N.Y., she is a member of North Shore Synagogue and a graduate of Dickinson College.

Tracy Wolf