Thursday, December 10, 2015

Analysis of Little Sisters of the Poor v. Burwell

The Supreme Court is returning to the issue that it dealt with in the Hobby Lobby case -- whether the Religious Freedom Restoration Act (RFRA) gives an employer the right to refuse to provide health insurance coverage for contraceptive services. This is a difficult question because the Affordable Care Act gives employees the right to such coverage. In Hobby Lobby the Court was able to craft an accommodation that protected the rights of both employers and employees. In this case, a group of employers challenges that accommodation; they contend that the accommodation itself violates their rights to religious exercise under RFRA.


On November 6, 2015, the Supreme Court granted certiorari in seven consolidated cases involving a large number of independent religious non-profit organizations. The issue in this case can be stated very simply. Do the HHS regulations that require independent religious employers to notify the government that they have religious objections to providing contraception to their employees violate the Religious Freedom Restoration Act? The plaintiffs do not challenge the employer contraception mandate itself. The Supreme Court already ruled in the Hobby Lobby case that the government must make an accommodation for religious employers. In contrast to Hobby Lobby, in these cases the plaintiffs assert that the requirement that they notify the government that they have a religious objection to the contraception mandate is unduly burdensome on the exercise of their religion.

The Plaintiffs

Most of the plaintiff organizations are not integrated into a church, but rather are independent religious entities performing evangelical, educational, or charitable work. For example, the Little Sisters of the Poor operate nursing homes for the elderly who are indigent. Southern Nazarene University is an institution of higher education that describes itself as providing “Christ-centered higher education.” The non-profit organization Reaching Souls promotes and supports evangelism in Africa and elsewhere.

The Contraception Mandate and the Accommodation

The Affordable Care Act requires health insurance plans, whether they are employer-sponsored or sold to individuals over an exchange, to cover preventive care at no charge to policyholders. As a result, if an employer offers health insurance to its employees, the health insurance plan must cover the cost of preventive care with no deductibles or co-pays. The Department of Health and Human Services (HHS) determined that contraception constitutes a type of preventive care, and issued a regulation providing that contraceptive services (such as birth control pills or IUDs) must be covered at no cost to policyholders. However, in recognition of religious objections to contraception or certain forms of contraception, HHS issued a regulation completely exempting churches and their integrated affiliates from having to comply with the contraception mandate. In other words, the employees of churches and their integrated organizations do not have a legal right to contraception coverage under the Affordable Care Act. In addition to the exemption for churches and their integrated organizations, HHS has issued a regulation creating an accommodation for independent religious non-profit organizations. This accommodation simply requires the organization to notify either its health insurer or HHS of its refusal to provide health insurance coverage to its employees for contraception, or certain forms of contraception. Upon receipt of that notification HHS requires the insurer to bear the cost of providing contraception coverage at no cost to either the employer or the employee.

The Decisions of the Circuit Courts

Most of the plaintiffs in these seven cases (who are the appellants in the Supreme Court) are, as described above, independent non-profit religious organizations that are not churches themselves, nor are they integrated into a church. In some of the cases the plaintiffs won at the District Court level, but in all of these seven cases the federal Circuit Courts of Appeals ruled against them and in favor of the federal government, upholding the notification requirement. These decisions came from the 3rd, 5th, 10th, and D.C. Circuit Courts of Appeals. Other Circuit Courts, including the 6th and 7th Circuits, came to same conclusion, but those cases are not on appeal. In September of this year one federal Circuit Court ruled in favor of the plaintiffs. That was the 8th Circuit Court of Appeals.

The Questions Presented in the Supreme Court

In granting certiorari (that is, in agreeing to hear the seven cases on appeal), the Supreme Court consolidated all seven cases and certified the following questions that were framed in the parties’ petitions for certiorari:

Whether the HHS Mandate and its "accommodation" violate the Religious Freedom Restoration Act (''RFRA'') by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the Government has not proven that this compulsion is the least restrictive means of advancing any compelling interest. (Docket No.s 14-1418, 14-1376, and 14-1377)

Whether the Religious Freedom Restoration Act ("RFRA'') allows the Government to force objecting religious nonprofit organizations to violate their beliefs by offering health plans with "seamless" access to coverage for contraceptives, abortifacients, and sterilization. (Docket No.s 14-1505, 13-5368, 13-5371, and 14-5021)

Does the availability of a regulatory method for nonprofit religious employers to comply with HHS’s contraceptive mandate eliminate either the substantial burden on religious exercise or the violation of RFRA that this Court recognized in Burwell v. Hobby Lobby Stores Inc., 134 S.Ct. 2751 (2014)? (Docket No. 15-105)

Can HHS satisfy RFRA’s demanding test for overriding sincerely held religious objections in circumstances where HHS itself insists that overriding the religious objection will not fulfill HHS’s regulatory objective – namely, the provision of no cost contraceptives to the objector’s employees? (Docket No. 15-105).

The Supreme Court Will Not Address Any Constitutional Issues

The Supreme Court is not deciding whether the notification procedure allowing plaintiffs to “opt out” of the contraception mandate violates the Free Exercise Clause of the First Amendment. The Supreme Court greatly limited the scope of the Free Exercise Clause in the case of Employment Division v. Smith (1990). Nor is the Court considering whether the notification procedure violates the Establishment Clause. This law does not seek to regulate the internal governance of a church, like the law that was struck down in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). Nor are any other constitutional rights such as the right of parents to direct the religious education of their children involved in any of these cases.

The Issues Under the Religious Freedom Restoration Act

This case is, instead, a straightforward application of the Religious Freedom Restoration Act, which is codified at 42 U.S.C. §2000bb. Under RFRA if a federal law imposes a substantial burden on the exercise of a person’s religion, then that law is unenforceable unless it is the least restrictive means of accomplishing a compelling governmental interest. Accordingly, there are potentially three issues that the Supreme Court will have to address:

1. Is the notification procedure that is required in order to “opt out” of the employer contraception mandate in and of itself a “substantial burden” on the exercise of the employer’s religion?

2. If so, does the government have a “compelling interest” in requiring the employer to so notify the government?

3. If so, is the notification requirement the “least restrictive means” of accomplishing the government’s interest?

If the Supreme Court finds that the notification procedure does not impose a substantial burden on the exercise of the employer’s religion, then it will simply uphold the law and it will not proceed with the rest of the analysis.

Contrast to the Hobby Lobby Case

In 2014 the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc, in which it struck down the contraception mandate as applied to a for-profit business that was closely held by a family with religious objections to certain forms of contraception. In that case the Supreme Court ruled that the contraception mandate did indeed impose a substantial burden on Hobby Lobby Stores, Inc.’s religious exercise. The Court assumed that making contraception available to women at no cost served a compelling governmental interest, and it identified two less restrictive alternatives that the federal government could have implemented instead of requiring employer health plans to cover contraception. First, the government could have enacted a law that used public funds to provide or pay for contraceptive services. Speaking for the majority, Justice Alito stated:

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance polices due to their employers’ religious objections.

Second, the Court noted that the notification procedure for independent non-profit religious organizations – the same notification procedure that is being challenged in this case – was a less restrictive alternative to the employer mandate. Justice Alito stated:

In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization's insurance issuer or third-party administrator must "[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan" and "[p]rovide separate payments for any contraceptive services required to be covered" without imposing "any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries."

Justice Alito was careful not to state whether the notification procedure itself was lawful under RFRA; he only ruled that it was a “less restrictive” alternative to the employer mandate. He said:

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs' religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS's stated interests equally well.

This case – Little Sisters of the Poor v. Burwell – involves the question that was left open in Hobby Lobby: namely, is the accommodation procedure – the requirement that an employer notify the government that it has a religious objection to providing contraception – in and of itself a violation of the Religious Freedom Restoration Act?

The Accommodation Procedure

Religious employers that are not integrated into a church may object to providing contraceptive coverage in one of two ways: by notifying their insurer, or by notifying HHS. The notice to the insurer is “Form 700,” which informs the health insurance issuer that the organization has a religious objection to the contraception mandate. The back of the form notifies issuers of their obligation under the law to provide contraceptive services to employees and beneficiaries without cost sharing. The notice to HHS must contain the following information: (1) the name of the employer and the basis on which it qualifies for an accommodation; (2) a statement of its objection to providing contraceptive services; (3) the name and type of group health plan; and (4) the name and contact information for any of the plan’s TPA’s and/or health insurance issuers.

Is the Paperwork Associated with the Accommodation Procedure Too Burdensome?

This case is not a challenge to the contraception mandate. It is instead a challenge to the accommodation extended to independent religious organizations so that they will not be subject to the contraception mandate. One of the first issues that the Supreme Court will have to consider is whether the paperwork associated with the notification requirement is too burdensome.

In Sharpe Holdings, Inc. v. Burwell, the Eighth Circuit ruled that the notification requirement was too burdensome, both in the level of detail that was required and because the notification had to be updated if there were any changes. The Circuit Court noted while these other seven cases were on appeal the Supreme Court stayed enforcement of the HHS notification requirement and required the employers to notify HHS of its objection to providing contraception coverage. Speaking for the Eighth Circuit, Judge Roger Wollman stated that the notice required by the Supreme Court was “arguably less onerous than either Form 700 or HHS Notice yet permits the government to further its interests.”

None of the other Circuit Courts found the HHS notice to be unduly burdensome. In the Little Sisters of the Poor case the Tenth Circuit was able to identify only one previous case from that circuit where a person had challenged an accommodation procedure as too burdensome under RFRA. That was the case of United States v. Friday, decided by the Tenth Circuit in 2008. In that case the defendant had been charged with killing a bald eagle in violation of federal law. Friday contended that since he intended to use the eagle feathers in a Native American religious ceremony that the law under which he was prosecuted was unenforceable under the Religious Freedom Restoration Act. However, federal law allows people to apply for a permit to take bald eagles for religious purposes, and Friday had chosen not to apply for a permit. The Tenth Circuit stated in the Friday case that they were “skeptical that the bare requirement of obtaining a permit can be regarded as a ‘substantial burden’ under RFRA.” The 10th Circuit concluded in Friday that, “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.” The Court quoted and approved those passages in the Little Sisters of the Poor case.

The “Complicity” or “Triggering” Argument

The principal contention raised by the plaintiffs is that the federal law makes them “complicit” in the sin of using contraception or using certain forms of contraception. They argue that when they notify their insurer or HHS that they are opting out of providing contraception services, that this “triggers” the liability of their insurer to provide that coverage. They state that their notification constitutes a crucial step in the administrative process that would result in their employees gaining access to contraception at no charge.

Deference Due to the Plaintiff on the Question of “Substantiality” of the Burden

Like many lawsuits this case will turn in great part upon the burden of proof. Where do the presumptions lie on the question of the “substantiality” of the accommodation’s burden on religion?

In Hobby Lobby the Supreme Court was extremely deferential to the plaintiff corporations on the question of whether the contraception mandate imposed a “substantial” burden on their religious exercise. The Supreme Court essentially conflated the question of “sincerity” of religious belief – which the government should only rarely challenge – with the question of substantiality of the burden that the law imposes upon those sincere beliefs. In Hobby Lobby Justice Alito stated:

[I]n these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function ... in this context is to determine” whether the line drawn reflects “an honest conviction,” and there is no dispute that it does.

… Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.

In the Sharpe Holdings and Dordt College cases the Eighth Circuit quoted these passages from Hobby Lobby and came to the same conclusion that the Supreme Court had in Hobby Lobby. Judge Wollman stated: 

In light of CNS and HCC's sincerely held religious beliefs, we conclude that compelling their participation in the accommodation process by threat of severe monetary penalty is a substantial burden on their exercise of religion.

The other Circuit Courts came to the opposite conclusion mainly because they assigned the burden of proof differently. Several of the Circuit Courts simply held that it is for the courts, not the plaintiffs, to determine whether the burden on free exercise of religion imposed by the accommodation is “substantial.” For example, in Priests for Life the D.C. Circuit Court stated:

Accepting the sincerity of Plaintiffs' beliefs, however, does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs' religious exercise, and to distinguish Plaintiffs' duties from obligations imposed, not on them, but on insurers and [third-party administrators]. Whether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact.

The Fifth Circuit came to the same conclusion – that the courts, not the plaintiffs, must decide how substantial the burden on religion is – but the court used different reasoning to come to that result. In East Texas Baptist University v. Burwell the Fifth Circuit “deconstructed” the concept of “substantial burden” on religion and added an additional element that the courts must consider – whether the law “pressures” the person challenging the law into modifying their religious exercise. Speaking for the Fifth Circuit, Judge Jerry Smith stated:

A preliminary question—at the heart of this case—is the extent to which the courts defer to a religious objector's view on whether there is a substantial burden. The inquiry has three components: (1) What is the adherent's religious exercise? (2) Does the challenged law pressure him to modify that exercise? (3) Is the penalty for noncompliance substantial? It is well established that the court accepts the objector's answer to the first question upon finding that his beliefs are sincerely held and religious. It is also undeniable that the court evaluates the third question as one of law. Although we have not directly addressed who decides the second question, all of our sister circuits that have considered contraceptive-mandate cases have come to the same conclusion: The court makes that decision. We agree.

I agree that this question regarding the burden of proof is “at the heart of this case.” If the Supreme Court finds that the courts must accept the religious objectors’ contention that the requirement of giving notification is a “substantial burden” on the exercise of their religion, then the only way for the government to win will be for it to prove that there is no less restrictive way for the government to provide women with comprehensive health insurance coverage for contraception. That may be very difficult.

A Response to the “Complicity” Argument – The “Third Party” Argument
Several of the Circuit Court opinions responded to the plaintiff’s “complicity” argument by finding that contraceptive coverage was not caused by the plaintiff’s action in taking the accommodation, but rather that it resulted from the actions of third parties.

In the Seventh Circuit case involving Notre Dame University, Judge Richard Posner invoked the analogy of a Quaker conscientious objector. Under the law a dedicated pacifist is entitled to refuse to serve in the military. But the law does not entitle that person to prevent others from being required to serve. Judge Posner stated:

Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who's been called up tells the selective service system that he's a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he's told: “you know this means we'll have to draft someone in place of you”—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to “trigger” the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non-Quaker replacement? That seems a fantastic suggestion. Yet confronted with this hypothetical at the oral argument, Notre Dame's counsel acknowledged its applicability and said that drafting a replacement indeed would substantially burden the Quaker's religion.

This “third party” argument was also developed extensively in the Sixth Circuit case Michigan Catholic Conference and Catholic Family Services v. Burwell. Writing for the court, Judge Karen Moore reasoned that the plaintiffs were not required to provide, pay for, or “trigger” contraceptive coverage; instead, contraceptive coverage resulted from the actions of third parties, namely the government and the health insurer:

The appellants are not required to “provide” contraceptive coverage. They are not required physically to distribute contraception to their employees upon request, and the eligible organization's health plan does not host the coverage…. Thus, although the insurance issuer or third-party administrator will provide contraceptive coverage, the appellants will not.

The appellants are not required to “pay for” contraceptive coverage. When an insurance issuer receives the self-certification form, it “must ... Provide separate payments for any contraceptive services.” 

Submitting the self-certification form to the insurance issuer or third-party administrator does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage. …

The appellants allege that providing, paying for, and/or facilitating access to contraceptive coverage burdens their exercise of religion. As discussed supra, the exemption and accommodation framework does not require them to do any of these things. The framework does not permit them to prevent their insurance issuer or third-party administrator from providing contraceptive coverage to their employees pursuant to independent obligations under federal law. However, the inability to “restrain the behavior of a third party that conflicts with the [appellants'] religious beliefs,” does not impose a burden on the appellants' exercise of religion. “[W]hile a religious institution has broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution.”

The government's imposition of an independent obligation on a third party does not impose a substantial burden on the appellants' exercise of religion.”

In finding that the accommodation provided under the Affordable Care Act does not violate the Religious Freedom Restoration Act, several of the Circuit Courts including the Fifth Circuit invoked two prior decisions of the Supreme Court finding that religious objectors did not have the right to control the actions of third parties. In Bowen v. Roy (1986) parents objected to the government’s use of a social security number for their daughter because they believed that it would “rob her spirit.” In Lyng v. Northwest Indian Cemetery Protective Association (1988) the plaintiffs objected to the government’s plans to build a road and permit logging on federal land that the plaintiffs used for religious purposes. In each case the Supreme Court ruled that the religious objectors had no right to prevent the government from taking action that was contrary to the plaintiffs’ beliefs. The government was free to use people’s social security numbers and to develop federal land, despite the plaintiffs’ religious objections to those actions.

The Third Circuit agreed with these conclusions about the inability of religious objectors to control the actions of third parties. In Geneva College v. Secretary of the U.S. Department of Health and Human Services, the Third Circuit drew a distinction between laws that inhibit or compel the action of a citizen, and laws that govern the rights and responsibilities of other persons. Speaking for the Circuit Court, Judge Marjorie Rendell stated:

Thus, the case law clearly draws a distinction between what the law may impose on a person over religious objections, and what it permits or requires a third party to do. Although that person may have a religious objection to what the government, or another third party, does with something that the law requires to be provided (whether it be a Social Security number, DNA, or a form that states that the person religiously objects to providing contraceptive coverage), RFRA does not necessarily permit that person to impose a restraint on another's action based on the claim that the action is religiously abhorrent.

Rulings That the Accommodation Procedure Does Not Substantially Burden Religion

All of the Circuit Courts aside from the Eighth Circuit rejected the “complicity” and “triggering” arguments of the plaintiffs. The courts found that far from making the religious employers “complicit” with coverage for contraception, the accommodation permitted them to “opt out” of the coverage plan. And the courts ruled that the accommodation procedure did not “trigger” contraception coverage; instead, such coverage was triggered by federal law and carried out by the insurer, not the employer. All of these courts concluded that, with the accommodation procedure in place, the employer was not required to provide, pay for, or facilitate contraceptive coverage. For example, in the Little Sisters of the Poor case the Tenth Circuit stated:

We conclude the accommodation does not substantially burden Plaintiffs' religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA.

The Other Third Parties Affected: Female Employees

Another important consideration in this case is the effect that the employer’s decision will have on the legal rights of their employees. The Affordable Care Act grants millions of women a statutory right of access to contraception at no charge. The independent religious organizations in this case have a religious objection to the use of contraception, and the central issue in this case is which group’s rights will prevail.

In Hobby Lobby the Supreme Court was able to accommodate the rights of both groups – the result protected the rights of both religious employers and the rights of their female employees. Both the Affordable Care Act and the Religious Freedom Restoration Act were interpreted so that businesses like Hobby Lobby Stores would not have to provide coverage for contraception, but that their insurers would, ensuring that women would receive the insurance coverage that the law required.

However, if the notification procedure itself is also illegal – if religious employers do not even have to notify the government that they are refusing to provide coverage for contraception – then the question arises whether female employees will in fact be denied that coverage. In the Priests for Life case the D.C. Circuit found that striking down the notification requirement would indeed threaten women with the loss of those benefits. Speaking for the Fifth Circuit, Judge Cornelia Pillard stated:

This case also differs from Hobby Lobby in another crucial respect: In holding that Hobby Lobby must be accommodated, the Supreme Court repeatedly underscored that the effect on women's contraceptive coverage of extending the accommodation to the complaining businesses “would be precisely zero.” Id. at 2760; see also id. at 2781 n. 37 (“Our decision in these cases need not result in any detrimental effect on any third party.”); id. at 2782 (extending accommodation to Hobby Lobby would “protect the asserted needs of women as effectively” as not doing so). Justice Kennedy in his concurrence emphasized the same point, that extending the accommodation to for-profit corporations “equally furthers the Government's interest but does not impinge on the plaintiffs' religious beliefs.” Id. at 2786. The relief Plaintiffs seek here, in contrast, would hinder women's access to contraception. It would either deny the contraceptive coverage altogether or, at a minimum, make the coverage no longer seamless from the beneficiaries' perspective, instead requiring them to take additional steps to obtain contraceptive coverage elsewhere.

If the Fifth Circuit is correct that relieving employers of the obligation to give notice of their objection to contraception would abrogate their employees’ right to contraception coverage, then the Supreme Court will have a very difficult choice indeed.

The Other Less Restrictive Alternative – A Separate Government Program Paying for Contraception

If the Supreme Court finds that the notification procedure imposes a substantial burden on the exercise of the employers’ religion, then under RFRA the notification procedure will be struck down unless the government can prove that there is no less restrictive alternative that will guarantee women access to contraception at no charge. That may be difficult to prove, in light of Hobby Lobby. As noted above, the Supreme Court has already stated that the most “straightforward” way of providing and paying for women’s birth control would be for the government to set up a separate program for that purpose. That is, of course, easy for a court to say, but perhaps difficult for a legislature to do. The Supreme Court will have to decide whether the Religious Freedom Restoration Act may stand as a barrier to significant legal rights that women currently enjoy under federal law.


Self-insured employers with religious objections to contraception will assert two arguments in the Supreme Court. First, they will contend that even though the law provides that their third-party administrators must bear the cost of contraception coverage, these costs may in fact be passed on to them. The Fifth Circuit found that this claim was speculative and therefore not ripe for judicial review.

Some religious organizations that are not integrated into a church nevertheless participate in health plans that are self-insured by a church. The government lacks the authority to order a self-insured church to cover contraceptive services. The non-profit organizations that participate in those plans will contend that it makes no sense to require them to notify HHS that they have a religious objection to contraception coverage because the government won’t be able to order anyone else to provide contraception coverage anyway. This argument has merit under the “least restrictive means” prong of RFRA. However, if the Supreme Court rules that the notification procedure does not impose a substantial burden on the exercise of the organization’s religion, the least restrictive means prong will not come into play. If the religious accommodation developed by HHS does not substantially burden the organization’s exercise of religion, it will be upheld by the Court even as to these types of organizations.


In summary, in these seven consolidated cases the Supreme Court will determine whether it is lawful, under the Religious Freedom Restoration Act, to require religious organizations that are not integrated into a church to notify their insurer or the government if they wish to “opt out” of the employer health insurance coverage for contraception. The principal issue for the court to decide is whether the notification requirement imposes a substantial burden on the free exercise of religion.


Consolidated Supreme Court Cases

            The Supreme Court has certified seven cases for review in this matter. In all of these cases the circuit courts ruled that the notification procedure does not violate the Religious Freedom Restoration Act. The Court ordered that petitioners in three of cases will submit one brief on appeal, and the petitioners in the other four cases will submit a separate brief on appeal. The Supreme Court Docket Numbers of each of these cases, and the citations to the Circuit Court decisions, are set forth below.

Cases on the First Brief:

14-1418 David A. Zubik v. Burwell, 778 F.3d 422 (3rd Cir., February 11, 2015)
14-1453 Priests for Life, et al. v. Department of Health and Human Services, et al., 772 F.3d 229 (D.C. Cir., November 14 (2014)
14-1505 Roman Catholic Archbishop of Washington et al. v. Burwell, 772 F.3d 229 (D.C. Cir., November 14, 2014)

Cases on the Second Brief:

15-35 East Texas Baptist University, et al., v. Burwell, 793 F.3d 449 (5th Cir., June 22, 2015)
15-105 Little Sisters of the Poor Home for the Aged, Denver, Colorado, et al. v. Burwell, 794 F.3d 1151 (10th Cir., July 14, 2015)
15-119 Southern Nazarene University, et al. v. Burwell, 794 F.3d 1151 (10th Cir., July 14, 2015)
15-191 Geneva College v. Sylvia Burwell, 778 F.3d 422 (3rd Cir. February 11, 2015)

Other Circuit Court Decisions on this Matter

University of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir., May 19, 2015) (upholding accommodation under RFRA).

Michigan Catholic Conference and Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir., June 11, 2014) (upholding accommodation under RFRA).

Sharpe Holdings Inc. v. Burwell 801 F.3d 927, and Dordt College v. Burwell 801 F.3d 946 (8th Cir., Sept. 17, 2015) (holding that the accommodation violates RFRA).

The Hobby Lobby Case

Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (June 30, 2014) (striking down contraception mandate under RFRA for not being the “least restrictive means” of extending contraceptive coverage to female employees).

News and Analysis

Laurie Sobel and Alina Salganicoff, Round 2 on the Legal Challenges to Contraceptive Coverage: Are Nonprofits “Substantially Burdened” by the Accommodation, Kaiser Family Foundation (Nov. 9, 2015), at

Lyle Denniston, Court to Hear Birth Control Challenges, SCOTUSblog (Nov. 6, 2015), at

The Becket Fund for Religious Liberty, HHS Mandate Information Central chart at

Emma Green, The Little Sisters of the Poor Are Headed to the Supreme Court, The Atlantic (Nov. 6, 2015), at

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