On March 23rd, the Supreme Court heard oral arguments in Zubik v. Burwell, yet another challenge to the Obamacare Health and Human Services (HHS) mandate. To all us non-lawyers in the world, the case might seem a little pointless; after all, didn’t this get settled in 2014 in the famous consolidated cases, Burwell v. Hobby Lobby and Conestoga Wood Specialties v. Burwell? Well, as with most things in law, it’s more complicated than that, and this time around, there’s even more on the line.
Here’s a brief summary of Zubik: The Obamacare HHS mandate ostensibly requires employers to provide access to contraception and abortion-inducing drugs to employees through their health plans (ostensibly being a key word—plenty of employers are already exempt from the mandate). If they refuse, even if they object on religious grounds, they face crippling fines. ADF has been on the forefront of defending the freedom of conscience of employers, and by God’s grace has a 19-4 winning record against the HHS Mandate. Of the four cases we've lost, two—Geneva College v. Burwell and Southern Nazarene University v. Burwell—are included along with five other federal appellate court losses are before the Court under the name of the first case to reach the Court (Zubik).
On the surface, Zubik does look like Conestoga and Hobby Lobby Round Two. In those two cases, the Supreme Court ruled that imposing the HHS Mandate on closely-held, for-profit, religiously pro-life businesses violates the Religious Freedom Restoration Act of 1993 (RFRA). RFRA says that if the government substantially burdens religious exercise, it must: 1) demonstrate that it has a compelling interest in forcing people (or organizations) to give up their religious freedom, and 2) use the least restrictive means possible. In Conestoga and Hobby Lobby, the Court held that the mandate substantially burdened religious exercise. As a result, the government had to prove its actions were justified.
Obviously, it didn’t. But which requirement did the Court conclude it failed to meet? The government’s case on requirement number one—that the government has a compelling interest to make sure women have access to abortifacients through their employers’ healthcare plans—is actually pretty shaky. Right now, fully a third of Americans work for employers who are exempt from the mandate, including corporate giants like Pepsi and Visa, the entire New York City government, and the United States Military, the largest employer in the world. All of these employers were “grandfathered” in as exempt when Obamacare passed, raising this question: if the government’s interest is so compelling, why are huge numbers of employers already exempt?
But this wasn’t even the weakest point of the government’s argument in Conestoga and Hobby Lobby. Even assuming for argument’s sake that a compelling interest might exist, the Court recognized that the mandate was legally impermissible because it wasn’t the least restrictive means of fulfilling the government’s stated interest. Because of this, the Court ruled that application of the mandate to the businesses violated RFRA.
In the meantime, the government concocted a different way for some religious non-profits to comply with the mandate. Despite being informed otherwise in advance, the government thinks that the so-called “accommodation,” addresses employers’ moral objections to providing abortifacients.
And so we come, at last, to Zubik. In Zubik, 37 plaintiffs in seven cases are contend that RFRA requires an exemption from complying with the mandate through either mechanism the government created. In response, the government claims that the alternate mechanism imposes no burden on their religious exercise.
Here’s why it’s wrong: The regulatory compliance mechanism might alleviate the employer’s financial responsibility for abortifacients, but it still requires them to play an indispensable role in delivering abortion-inducing medications to its employees. And for Geneva College, the four Oklahoma universities, and all the other non-profits in Zubik, that amounts to a violation of conscience.
Think of it this way: suppose your friend thinks she might be pregnant, is terrified, and decides to use Plan B, an early-abortion-inducing medication. The original HHS mandate is like requiring you to give her cash and drive her to the store to buy it. The accommodation is like making you drive her to the store where someone else will buy it for her. Sure, she actually gets the drug from someone else, but many people would object to participate at all in bringing about an abortion.
What the plaintiffs in Zubik are also saying is that if the government thinks it’s so vitally important for women to have free access to abortifacients, it can get in the driver’s seat itself. It can offer subsidies for the medications that religious organizations object to providing, so that a woman can go to any drug store, buy the pills, and file for a full-value subsidy from the government. The least restrictive way to meeting whatever dubious government interest may exist is to make the government meet that interest, instead of making employers do the government’s dirty work.
Zubik isn’t just Conestoga/Hobby Lobby round two. It confronts the government’s deeply troubling assertion of power over seriously religious organizations. Our clients are asking the Court to reject the administration’s arrogant contention that it understands their theology better than they do. And the case addresses the government’s unwillingness to follow the obvious ramifications of the Court’s decision in Conestoga. On the line is the ability of all Americans to live—not simply believe—according to their consciences.