Zubik v. Burwell
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''Zubik v. Burwell'', 578 U.S. ___ (2016), was a case before the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
on whether
religious institutions Religious activities generally need some infrastructure to be conducted. For this reason, there generally exist religion-supporting organizations, which are some form of organization that manages: * the upkeep of places of worship, such as ...
other than churches should be exempt from the
contraceptive mandate A contraceptive mandate is a government regulation or law that requires health insurers, or employers that provide their employees with health insurance, to cover some contraceptive costs in their health insurance plans. In 1978, the United Sta ...
, a regulation adopted by the
United States Department of Health and Human Services The United States Department of Health and Human Services (HHS) is a cabinet-level executive branch department of the U.S. federal government created to protect the health of all Americans and providing essential human services. Its motto is ...
(HHS) under the
Affordable Care Act The Affordable Care Act (ACA), formally known as the Patient Protection and Affordable Care Act and colloquially known as Obamacare, is a landmark U.S. federal statute enacted by the 111th United States Congress and signed into law by Presid ...
(ACA) that requires non-church employers to cover certain contraceptives for their female employees. Churches are already exempt under those regulations.Justices Seem Split in Case on Birth Control Mandate
Adam Liptak, New York Times, March 23, 2016
On May 16, 2016, the Supreme Court vacated the Court of Appeals ruling in ''Zubik v. Burwell'' and the six cases it had consolidated under that title and returned them to their respective courts of appeals for reconsideration.


Background


Federal law


Religious Freedom Restoration Act

The United States Supreme Court ruled in ''
Employment Division v. Smith ''Employment Division, Department of Human Resources of Oregon v. Smith'', 494 U.S. 872 (1990), is a United States Supreme Court case that held that the state could deny unemployment benefits to a person fired for violating a state prohibition on t ...
'' (1990) that a person may not defy "neutral laws of general applicability" even as an expression of religious belief. "To permit this," wrote Justice Scalia, citing the 1878 ''
Reynolds v. United States ''Reynolds v. United States'', 98 U.S. 145 (1878), was a Supreme Court of the United States case that held that religious duty was not a defense to a criminal indictment. ''Reynolds'' was the first Supreme Court opinion to address the First Amen ...
'' decision, "would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." He wrote that generally applicable laws do not have to meet the standard of
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
, because such a requirement would create "a private right to ignore generally applicable laws". Strict scrutiny would require a law to be the least restrictive means of furthering a compelling government interest. In 1993, the U.S. Congress responded by passing the
Religious Freedom Restoration Act The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at through (also known as RFRA, pronounced "rifra"), is a 1993 United States federal law that "ensures that interests in religiou ...
(RFRA), requiring strict scrutiny when a neutral law of general applicability "substantially burden a person's exercise of religion". The RFRA was amended in 2000 by the
Religious Land Use and Institutionalized Persons Act The Religious Land Use and Institutionalized Persons Act (RLUIPA), , codified as et seq., is a United States federal law that prohibits the imposition of burdens on the ability of prisoners to worship as they please and gives churches and oth ...
(RLUIPA) to redefine ''exercise of religion'' as any exercise of religion, "whether or not compelled by, or central to, a system of religious belief", which is to be "construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution". The Supreme Court upheld the constitutionality of the RFRA as applied to federal statutes in '' Gonzales v. O Centro Espirita'' in 2006.


Affordable Care Act

Most Americans are covered by employer-sponsored health insurance. In 2010,
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
passed the
Affordable Care Act The Affordable Care Act (ACA), formally known as the Patient Protection and Affordable Care Act and colloquially known as Obamacare, is a landmark U.S. federal statute enacted by the 111th United States Congress and signed into law by Presid ...
(ACA), which relies on the
Health Resources and Services Administration The Health Resources and Services Administration (HRSA) is an agency of the U.S. Department of Health and Human Services located in North Bethesda, Maryland. It is the primary federal agency for improving access to health care services for peop ...
(HRSA), part of the Department of Health and Human Services (HHS), to specify what kinds of preventive care for women should be covered in certain employer-based health plans. The HRSA decided that all twenty contraceptives approved by the U.S.
Food and Drug Administration The United States Food and Drug Administration (FDA or US FDA) is a List of United States federal agencies, federal agency of the United States Department of Health and Human Services, Department of Health and Human Services. The FDA is respon ...
(FDA) should be covered. Employers that refuse are fined $100 per individual per day, or they can replace their health coverage with higher wages and a calibrated tax. HHS exempted churches (including houses of worship, such as synagogues and mosques) and their integrated auxiliaries, associations of churches, and any religious order that engages exclusively in religious activity. These are the same groups exempt from filing IRS
Form 990 Form 990 (officially, the "Return of Organization Exempt From Income Tax") is a United States Internal Revenue Service form that provides the public with financial information about a nonprofit organization. It is often the only source of such i ...
. Employers providing grandfathered plans (plans that have not had specific changes before March 23, 2010), and employers with fewer than 50 employees were also exempt. Other non-profit organizations that object to any required contraception coverage could file an EBSA form 700 with their insurance company notifying them of the non-profit's objection. The insurance company would then provide the contraceptive coverage directly to employees without any involvement of the employer, including any distribution of literature or extra payments by the employer.


Initial litigation

The
Little Sisters of the Poor The Little Sisters of the Poor (french: Petites Sœurs des pauvres) is a Catholic religious institute for women. It was founded by Jeanne Jugan. Having felt the need to care for the many impoverished elderly who lined the streets of French towns ...
, a
Catholic The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
religious order, runs over 25 homes for low-income elderly in the United States and therefore is not automatically exempt from the contraceptive mandate. It objected to filing Form 700 because it believed that doing would make the order complicit in providing contraception, a sin under
Catholic doctrine Catholic doctrine may refer to: * Catholic theology ** Catholic moral theology ** Catholic Mariology *Heresy in the Catholic Church * Catholic social teaching * Catholic liturgy *Catholic Church and homosexuality The Catholic Church broadly ...
. On December 31, 2013, the day before the filing requirement was to come into effect, Supreme Court Justice
Sonia Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...
granted a temporary injunction to the Little Sisters of the Poor, allowing them to simply inform the Secretary of Health and Human Services of their objections, pending resolution of the case. Other religious institutions filed similar objections. On February 15, 2012, ''Priests for Life v. HHS'' was filed in the
U.S. District Court for the Eastern District of New York The United States District Court for the Eastern District of New York (in case citations, E.D.N.Y.) is the federal district court whose territorial jurisdiction spans five counties in New York State: the four Long Island counties of Nassau, ...
challenging the constitutionality of the contraceptive mandate on behalf of
Priests for Life Priests for Life (PFL) is an anti-abortion organization based in Titusville, Florida. PFL functions as a network to promote and coordinate anti-abortion activism, especially among Roman Catholic priests and laymen, with the primary strategic goa ...
, a national, Catholic, pro-life organization based in
New York City New York, often called New York City or NYC, is the List of United States cities by population, most populous city in the United States. With a 2020 population of 8,804,190 distributed over , New York City is also the L ...
. The case was dismissed by U.S. District Court Judge
Frederic Block Frederic Block (born June 6, 1934) is a senior United States district judge of the United States District Court for the Eastern District of New York. Education and career Born in Brooklyn, New York, the Honorable Frederic Block received an ...
for lack of ripeness because the new compromise regulations were not yet finalized. On June 30, 2014, the Supreme Court ruled 5 to 4 in ''
Burwell v. Hobby Lobby Stores, Inc. ''Burwell v. Hobby Lobby Stores, Inc.'', 573 U.S. 682 (2014), is a List of landmark court decisions in the United States, landmark decision in United States corporate law by the Supreme Court of the United States, United States Supreme Court allow ...
'' that under the
Religious Freedom Restoration Act The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at through (also known as RFRA, pronounced "rifra"), is a 1993 United States federal law that "ensures that interests in religiou ...
(RFRA), closely held for-profit corporations are exempt from the contraceptive mandate, if they object on religious grounds, because the accommodation offered to objecting non-profits would be a less restrictive way to achieve the ACA's interest. On July 3, 2014, the Supreme Court granted a temporary exemption to the approach it suggested as a less restrictive alternative in ''Hobby Lobby,'' where the plaintiffs would send an EBSA Form 700 to its insurance issuer, which would pay for the contraception. In an unsigned emergency injunction for Wheaton College in Illinois, the court said that instead of notifying its insurance issuer, Wheaton can notify the government. Once notified, the government should notify the issuer. Wheaton believed that by transferring the obligation to cover contraceptives to its insurance issuer, it was triggering that obligation. The emergency injunction does not constitute a ruling on the merits of Wheaton's religious objection. The court said "Nothing in this interim order affects the ability of the applicant's employees and students to obtain, without cost, the full range of FDA approved contraceptives." In a 15-page dissent, joined by the other two female jurists on the court, Justice Sotomayor criticized the majority's reasoning and distinguished it from the situation with the Little Sisters of the Poor. A revised version of EBSA Form 700, effective August 2014, says " an alternative to using this form, an eligible organization may provide notice to the Secretary of Health and Human Services that the eligible organization has a religious objection to providing coverage for all or a subset of contraceptive services..." Eight appeals courts upheld the ACA mandate for non-church religious institutions. Only the
Eighth Circuit Court of Appeals The United States Court of Appeals for the Eighth Circuit (in case citations, 8th Cir.) is a United States federal court with appellate jurisdiction over the following United States district courts: * Eastern District of Arkansas * Western Distr ...
ruled the other way, upholding the challenge by religious non-profit institutions in September 2015 in two cases, ''Sharpe Holdings v. HHS'' and ''Dordt College v. Burwell''.


Litigation in the U.S. Supreme Court

On November 6, 2015, the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
consolidated seven cases, all challenges to the contraceptive mandate. The case is titled ''Zubik v. Burwell'' and the cases consolidated under that title and the Court of Appeals that issued the decision being appealed were: * ''Zubik v. Burwell'' (Third Circuit Court of Appeals) * '' Geneva College v. Burwell'' (Third Circuit Court of Appeals) * ''
East Texas Baptist University v. Burwell East or Orient is one of the four cardinal directions or points of the compass. It is the opposite direction from west and is the direction from which the Sun rises on the Earth. Etymology As in other languages, the word is formed from the fac ...
'' (Fifth Circuit Court of Appeals) * ''
Little Sisters of the Poor The Little Sisters of the Poor (french: Petites Sœurs des pauvres) is a Catholic religious institute for women. It was founded by Jeanne Jugan. Having felt the need to care for the many impoverished elderly who lined the streets of French towns ...
Home for the Aged v. Burwell'' (Tenth Circuit Court of Appeals) * ''
Southern Nazarene University v. Burwell Southern may refer to: Businesses * China Southern Airlines, airline based in Guangzhou, China * Southern Airways, defunct US airline * Southern Air, air cargo transportation company based in Norwalk, Connecticut, US * Southern Airways Express, ...
'' (Tenth Circuit Court of Appeals) * ''
Priests for Life Priests for Life (PFL) is an anti-abortion organization based in Titusville, Florida. PFL functions as a network to promote and coordinate anti-abortion activism, especially among Roman Catholic priests and laymen, with the primary strategic goa ...
v. Burwell'' (District of Columbia Circuit) * ''
Roman Catholic Archbishop of Washington v. Burwell Roman or Romans most often refers to: *Rome, the capital city of Italy *Ancient Rome, Roman civilization from 8th century BC to 5th century AD *Roman people, the people of ancient Rome *'' Epistle to the Romans'', shortened to ''Romans'', a lette ...
'' (District of Columbia Circuit)


Oral arguments

Oral arguments were heard on March 23, 2016. Issues discussed included how and where to draw the line between exempt churches and other religious non-profits and whether the government was "hijacking" the insurance plans created by the non-profits to achieve the government's goals. Because of Justice
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
's death in February, only eight justices heard the arguments, raising the possibility of an equally divided court, which would leave the appeals court rulings in force in their respective jurisdictions.


Supplemental briefing

On March 29 the Court directed the parties "to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners's insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees." The Court suggested a possible scheme where petitioners would obtain insurance without contraceptive coverage and "petitioners' insurance company, aware that petitioners are not providing certain contraceptive coverage on religious grounds, would separately notify petitioners' employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners's health plan." Also, of particular interest to the court was the question raised in an amicus brief of conscientious objection suggesting that courts may not usurp the right of religious adherents to determine their own views regarding moral complicity.


Ruling

On May 16, 2016, the Court issued a
per curiam decision In law, a ''per curiam'' decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively (and typically, though no ...
that vacated the decisions of the Circuit Courts of Appeals and remanded the cases to those courts for reconsideration in light of the "positions asserted by the parties in their supplemental briefs". Because the Petitioners agreed that "their religious exercise is not infringed where they 'need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception'", the Court held that the parties should be given an opportunity to clarify and refine how this approach would work in practice and to "resolve any outstanding issues". In a departure from the usual treatment of per curiam rulings, Chief Justice Roberts read the ruling aloud in court. The Supreme Court expressed "no view on the merits of the cases." In a concurring opinion, Justice Sotomayor, joined by Justice Ginsburg, noted that in earlier cases "some lower courts have ignored those instructions" and cautioned lower courts not to read any signals in the Supreme Court's actions in this case. She cited as an example the Eighth Circuit opinion in ''Sharpe Holdings'', the only Court of Appeals decision that had upheld the position taken by the ''Zubik'' plaintiffs.


Further litigation

On May 23 the Supreme Court returned two additional cases back to their respective Courts of Appeals for reconsideration in light of the filings in ''Zubik'': ''Catholic Healthcare System v. Burwell'' (Second Circuit Court of Appeals) and ''Michigan Catholic Conference v. Burwell'' (Sixth Circuit Court of Appeals). On July 21 the Obama administration asked the Courts of Appeals considering the ''Zubik'' cases to allow 65 days for the government to seek advice from third parties on all aspects of the legal dispute, from technical and practical implementation issues to religious and legal insight. It published a general appeal for comment and advice from "all interested stakeholders" in the ''Federal Register'' the next day. When
Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of Pe ...
took over as President in 2017, one of the first
Executive Order In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of th ...
s he enacted was to order the HHS to issue a ruling to allow for conscientious objections to the mandate, which was published in late 2017 and allowed for for-profit religious organizations to claim exemption from the mandate on religious or moral grounds. This led to numerous states pursuing further legal action on the new rules that culminated in another Supreme Court case, '' Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania'', which was heard in May 2020. The Supreme Court upheld the rules on a 7–2 decision issued in July 2020.


See also

* Supreme Court cases cited in oral arguments on the limits of religious liberty exemptions to general laws: ** ''
Lyng v. Northwest Indian Cemetery Protective Ass'n ''Lyng v. Northwest Indian Cemetery Protective Association'', 485 U.S. 439 (1988), was a United States Supreme Court landmark case in which the Court ruled on the applicability of the Free Exercise Clause to the practice of religion on Native Am ...
'' ** '' Bowen v. Roy'' ** ''
Wisconsin v. Yoder ''Wisconsin v. Jonas Yoder'', 406 U.S. 205 (1972), is the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education past 8th grade. The parents' fundamental right to freedom of religion ...
'' *
David Zubik David Allen Zubik ( ; born September 4, 1949) is an American prelate of the Roman Catholic Church who has been bishop of the Diocese of Pittsburgh in Pennsylvania since 2007. Zubik previously was the bishop of the Diocese of Green Bay in Wis ...
* Sylvia Mathews Burwell *
Constitutional challenges to the Patient Protection and Affordable Care Act Since the passage of the Affordable Care Act (ACA), there have been numerous actions in federal courts to challenge the constitutionality of the legislation. They include challenges by states against the ACA, reactions from legal experts with resp ...


Notes


References


Further reading

*


External links

* {{Authority control 2016 in United States case law Affordable Care Act lawsuits United States Supreme Court cases United States Supreme Court cases of the Roberts Court United States free exercise of religion case law Birth control in the United States Alliance Defending Freedom litigation