Nonprofit Challenges to the Contraceptive Coverage Requirement: The Meaning of Substantial Burdens on Religious Exercise Under the Religious Freedom Restoration Act

Summary

In the spring of 2016, the U.S. Supreme Court will consider a set of challenges alleging that the contraceptive coverage requirement of the Affordable Care Act (ACA) violates the federal Religious Freedom Restoration Act (RFRA). The Court has consolidated seven cases for review, each brought by nonprofit religious entities that have religious objections to the provision and use of contraceptives and that also object to the process by which their objections may be accommodated under ACA regulations that require employers to provide contraceptive coverage in group health plans. The question at the heart of these challenges is whether the accommodation process—requiring employers with religious objections to inform the government of their objection and third-party insurers to provide required coverage to the employer’s employees—would impose a substantial burden on religious exercise in violation of RFRA.

The Court’s consideration of these cases (consolidated under the case name Zubik v. Burwell and referred to collectively throughout this report as “the nonprofit challenges”) follows its landmark 2014 decision, Burwell v. Hobby Lobby Stores, Inc., which has had ongoing implications for a number of legal and legislative issues. Hobby Lobby expanded the scope of entities recognized as eligible for protection under RFRA, but left open a number of other questions about how far RFRA’s protection may extend, including what governmental actions might constitute a “substantial burden” on religious exercise prohibited under RFRA. Federal courts have been divided on the standard for recognizing a substantial burden in many cases, particularly in challenges to the ACA regulations.

While the Court’s decision almost certainly will provide clarification of RFRA’s application to the contraceptive coverage requirement, it also likely will impact RFRA claims in a range of other issues being litigated in courts and considered in legislatures, both on the federal and state level. RFRA applies to all federal actions, unless specifically exempted by Congress, meaning that the impacts of its interpretation may affect a broad number of legislative issues. Additionally, a number of states have enacted state versions, the interpretation of which may be influenced by the Court’s decisions. For example, organizations with religious objections to same-sex relationships have sought protection under RFRA for requirements to serve same-sex couples, including service by public accommodations; participation of religious providers in social service programs; and admission programs in religious institutions of higher education. Religious objections to other governmental mandates may affect other issues as well (e.g., abortion, health care, etc.).

This report examines the current parameters on governmental restrictions on religious exercise. It discusses the history of federal protection offered under the Free Exercise Clause of the First Amendment and RFRA, and notes parallel protections available at the state level. It analyzes the current interpretations of RFRA as applied to the contraceptive coverage requirement of the ACA, including discussion of Hobby Lobby and a review of the lower courts’ interpretations of the nonprofit challenges. Finally, the report highlights a range of issue areas of interest to Congress that may be affected by the Court’s interpretation of RFRA.