PRPCP’s Comment Regarding Zubik

This week the Public Rights Private Conscience Project (PCPCP) submitted a letter to the Department of Health & Human Services (HHS) in response to their request for information (RFI) regarding an accommodation for religious employers who do not wish to provide their employees with insurance coverage for no-cost contraceptive care, as mandated by the Affordable Care Act (ACA).  The request came shortly after the Supreme Court punted a case on this very topic back to the lower courts, leaving religious freedom and women’s health advocates in limbo regarding the mandate’s fate.

The case, Zubik v. Burwell, combined separate challenges from religious non-profits to the ACA’s contraceptive mandate, which requires employers to provide health insurance coverage for birth control to their employees. The religious accommodation to the mandate allowed religious non-profits to file a one-page form with the HHS to opt out, and made health insurance companies or third-party administrators responsible for stepping in to provide this coverage without involvement or funds from the employer. But the non-profits asserted that even this requirement violated their religious beliefs. The government holds that the accommodation complies with relevant laws protecting religious freedom, such as the Religious Freedom and Restoration Act (RFRA), which was enacted in 1993 to protect religious minorities.

In the RFI, the government states that their commitment to religious freedom and desire to find an accommodation that works for all led to the public information request.  The government also recognized that the Zubik decision “affect(s) a wide variety of stakeholders, including many who are not parties to the cases that were before the Supreme Court,” which they say increased their desire to find an effective solution to the problem presented in Zubik.

The RFI asks the public to comment on two alternatives to the ACA religious accommodation. The first alternative would allow religious non-profits to contract with insurers for coverage that did not include contraceptives and then the insurer would have to notify employees separately and explain that they would provide no-cost contraceptive coverage independent of the employer’s health plan. Here, the religious employer would only have to verbally notify the insurer of their objection, rather than through a form. The second alternative was for women employees to affirmatively enroll in policies that only covered contraceptives.

In the comment that PRPCP submitted we began by discussing how the existing religious accommodation does not offend RFRA:

“RFRA prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. The current accommodation meets this standard for two reasons: first, it does not impose a burden, much less one that is substantial in nature, on religious exercise and second, it is the least restrictive means of furthering the government’s compelling interests in ensuring access to contraceptives, a necessary part of basic preventative health care, and avoiding violations of the Establishment Clause.”

PRPCP then discusses how the alternative accommodations proposed by the plaintiffs would impose harms on employees and their families and risk violating the Establishment Clause. Here, we noted that a number of Supreme Court cases have held that the Establishment Clauses was violated when a government-created religious accommodation imposed serious harms on other private individuals. We stated:

“Both of the alternative accommodations put forth in the RFI would impose a significant harm on non-beneficiaries, most notably employees and their families. The first alternative, by providing ample opportunity for confusion, misrepresentation, and further RFRA litigation, would make employees susceptible to extensive gaps in necessary contraceptive coverage. Further, by making enforcement of the contraceptive mandate significantly more difficult, it would impose costs on both employees and the government. The second alternative would impose significant burdens on third parties by requiring health plans to create, and employees to seek out and enroll in, contraceptive-only health plans. These plans would likely face substantial administrative and financial difficulties. Furthermore, they would result in fewer employees and families having adequate access to contraceptive health care.”

Lastly, we mentioned how important seamless access to cost-free contraceptive care is for women of color, a conversation that is oftentimes left out of the discussion about religious accommodations to the ACA. PRCPC noted:

“Eliminating disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and family planning resources. Access to contraception allows women of color to plan whether and when they will have a child, which research has shown provides them with greater financial stability and freedom.  Many women of color, who on average earn significantly less than white women, cannot afford to pay for quality contraception. For example, the IUD is considered the most effective form of contraception available on the market today and costs between $500.00 and $1,000.00 without insurance. Because of its high cost, among other factors, only six percent of Black women have used IUDs compared with seventy-eight percent who have used birth control pills, which have higher user failure rates.  Providing women of color with access to contraceptive coverage at no additional cost will help to reduce the reproductive health disparities that we see in communities of color. This is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.”

We applaud the Department’s commitment to religious freedom as mentioned in the RFI, however hope this commitment does not outweigh its duty to uphold the rights of women seeking cost-free contraceptive coverage. Unfortunately, the Supreme Court dodged making a decision on this important