Will Obamacare Trump Religious Organizations? A Preview of Zubik v. Burwell on the Eve of Oral Argument

March 18, 2016

Two years ago, in Burwell v. Hobby Lobby, the Supreme Court ruled that regulations implementing Obamacare’s “preventive care” mandate violated the Religious Freedom Restoration Act (RFRA) for certain closely held corporations. Employers with religious objections to some of the contraceptives that the Department of Health and Human Services (HHS) required them to cover had to be exempt from that regulation. They thus joined churches and their “auxiliaries,” which HHS had exempted from the contraceptive mandate after public outrage at the scope of the initial regulation. But what about nonprofits that HHS considered insufficiently religious to merit exemption? Religious schools, charities, and the like were instead offered an “accommodation”: These employers had to give the government information about their insurers and sign forms allowing their health plan to provide contraceptives. The only justification for this differential treatment was that employees of organizations that aren’t houses of worship are less likely to share their employer’s faith. In other words, HHS refused to exempt people who work for groups like Little Sisters of the Poor — a group of nuns who vow obedience to the Pope! — because they’re less committed to a religious mission. Thus the Supreme Court has taken up the issue of whether the contraceptive mandate and its “accommodation” violate RFRA by forcing religious nonprofits to act in violation of their sincerely held religious beliefs when the government has not proven that this compulsion is the least restrictive means of advancing any compelling interest. Please join us for a discussion of all the issues these cases raise, including what to look for at oral argument the following week.

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