Religious Liberty and Freedom of Conscience

Zubik v. Burwell (2016)

  • May 24 2018


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Whether the contraceptive mandate of the Affordable Care Act ACA violates the Religious Freedom Restoration Act RFRA if applied to religious, but non-church, non-profit organizations.


The Affordable Care Act ACA created a legal mandate that employers must cover contraception costs. Churches were given special exemption from this mandate, as were closely held, for-profit companies such as Hobby Lobby through litigation, but religious organizations such as Little Sisters of the Poor, Priests for Life, and other religious, but non-church, non-profit organizations involved in these consolidated cases were still required to pay for such health insurance for employees. These organizations, and others like it, claimed to have a fundamental religious belief that the use of contraceptives or the facilitating of the use of contraceptives is morally wrong and violates their religious doctrines.

Organizations such as these could petition the government for exemptions. But Zubik and others argued that the contraceptive mandate within the ACA and the exemption form created an undue burden on their religious freedom in violation of RFRA.

The Court Below 

The Supreme Court consolidated seven appeals court cases, which all considered the contraceptive mandate, into Zubik v. Burwell. See opinions below:

Zubik v. Burwell, Nos. 13-3536, 14-1374, 14-1376, 14-1377

Priests for Life v. Burwell, No. 13-5368

Southern Nazarene University v. Burwell, Nos. 14-6026 & 14-6028

Geneva College v. Burwell, Nos. 13-3536, 14-1374, 14-1376, 14-1377

Roman Catholic Archbishop of Washington v. Burwell, No. 13-5368

East Texas Baptist University v. Burwell, No. 14-20112

Little Sisters of the Poor Home for the Aged v. Burwell, No. 13-1540

Question before the Court

“Whether the Health and Human Services contraceptive mandate and its ‘accommodation’ form violate the Religious Freedom Restoration Act by forcing religious nonprofits to act in violation of their religious beliefs.”

CCJ filed an amicus curiae brief in support of Zubik


To map this argument broadly, despite the government’s claims, federal law does not require employers to provide coverage for contraceptives and abortifacients. The “preventative services” required include services such as breast and cervical cancer screenings, not contraceptives. Also, Executive Order 13535, written to assuage concerns raised by pro-life Democrats in the House, confirms that “preventive care” did not include abortion services. Next, HHS’s contraceptive mandate regulations changed the text of the ACA. The government manipulated the existing language of the act through the regulations, adopting them without the required public notice and comment requirements of the Administrative Procedures Act APA. This requirement to provide contraceptives is a product of illegal regulation contrary to statute, it violates freedom of conscience, and thus it cannot qualify as a “compelling interest.”

Federal law does not require employers to provide coverage for contraceptives and abortifacients. The text of the ACA says nothing about contraceptive coverage; instead, the text includes “preventative services,” such as breast and cervical cancer screenings—not contraceptives and abortifacients. The arbitrary inclusion of such contraceptive and abortifacient services is a clear example of HHS overstepping its authority in matters that should rightfully be decided through the legislature. In addition, Executive Order 13535 clearly states that “preventative services” within the ACA did not include abortifacients. Under these facts alone, the validity of the contraceptive regulations that gave rise to the religious liberty claims at issue here should be put under strict scrutiny, which requires the government to overcome great hurdles to justify such burdensome laws.

HHS’s contraceptive mandate regulations changed the statutory text and violated the APA. Despite the clear language found within the ACA and President Obama’s executive order explicitly stating abortifacients were not to be included within the ACA mandate, HHS manipulated the language found within subparagraph four to include such services. HHS misinterpreted subparagraph four as giving the Health Resources and Services Administration HRSA full authority to include any “preventative care” services it deemed necessary. The HRSA concluded that the full range of FDA approved contraceptive methods, sterilization procedures, and abortifacients were “necessary” preventative care services despite the clear language found in the ACA and executive order that expressly exclude abortifacients from the ACA mandate. Thus, the current abortifacient services currently being required by the HHS should be considered null and void.

Despite the HHS’s blatant disregard of President Obama’s executive order, forcing the Little Sisters of the Poor and the other petitioners to be complicit in the provision of abortifacients and contraceptives is a substantial burden on religious conscience. The government’s alternative method of allowing religiously affiliated employers to comply with the abortifacient-contraceptive mandate is itself a substantial burden on religious conscience. Catholic doctrine, for example, prohibits complicity in immoral conduct, not just the conduct itself. There is no dispute in this case that petitioners sincerely believe that the government’s proposed alternative method of compliance with the abortifacient/contraception mandate to which they are subject makes them complicit in abortion. Thus, the abortifacient/contraception mandate violates the RFRA and should again be considered null and void.

Final Outcome

The Supreme Court vacated and remanded the cases to the lower courts, holding that the “parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Despite CCJ’s urging, the Court expressed no view on the merits of the cases. As the standard of strict scrutiny would have required, there was no holding on whether the mandate created an unconstitutional religious “burden;” whether the government has a compelling interest to provide contraceptives; or whether the means chosen by the government to serve that interest were the least restrictive available.