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With remand, Supreme Court punts on contraceptive accommodation case
By Kara Krawzik on May 27, 2016 at 8:54 AM

SCOTUS punts on contraceptive accommodation question with remand On May 16, the U.S. Supreme Court declined to rule on a challenge to the Affordable Care Act’s contraceptive mandate as applied to nonprofit religious organizations.

In Zubik v. Burwell (2016 WL 2842449, U.S., No. 14-1418, 5/16/16), the court sent back to the lower courts seven decisions that held that the ACA’s accommodation for nonprofit religious organizations did not violate the Religious Freedom Restoration Act of 1993 (RFRA) or the First Amendment. 

The ACA requires health insurance providers — including nonprofit religious organizations that self-insure health plans — to cover contraceptives for women. Regulations were set forth to give nonprofit religious organizations the ability to opt out of paying for contraceptive coverage.

To benefit from this exemption, however, a nonprofit religious organization must submit a form to their insurer or the federal government stating that they object on religious grounds to providing contraceptive coverage. Nonprofit religious organizations challenged those regulations based upon the argument that the notice requirement substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act.

After oral arguments, the Supreme Court requested supplemental briefing on whether contraceptive coverage could be provided to the nonprofit religious organizations’ employees through the insurance companies without requiring notice from the organizations. The organizations stated in this briefing that their religious exercise is not infringed where they are only required to contract for a plan that does not include contraceptive coverage even if their employees receive cost-free contraceptive coverage from the same insurance company. The government confirmed that the challenged procedures could be modified to operate in the manner posited by the court’s order.

With the court’s remand, the parties now are to be given an opportunity to reach an agreement that accommodates the organizations’ religious exercise while ensuring that women “receive full and equal health coverage, including contraceptive coverage.”

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