By: John Burnett


Contraceptive Mandate and Exceptions

Under the Patient Protection and Affordable Care Act[1] (ACA) as passed, the Department of Health and Human Services was charged with determining the forms of female contraception that would be required[2] in nearly all employment-based health plans. The chosen twenty contraceptives recommended by the Institute of Medicine and approved by the FDA, include sixteen methods that prevent fertilization and four methods (two IUDs, Plan B, and Ella) that prevent implantation of an egg after fertilization[3]. Religious institutions (churches, synagogues, mosques, etc.) were automatically exempt from providing these contraceptives as part of their plans and religious non-profits were required only to submit a form to their insurers stating that they objected on religious grounds and the non-profit would be relieved of the requirement[4]. For exempted or waived entities, the insurance provider would step in to cover the cost of the contraceptives for the employees. This compromise sought to balance the ethics of religious non-profit institutions with the right of women to keep the medical options to which they are entitled, while also allowing insurance companies to maintain cost-effective preventative care to their customers.

For-profit companies, however, were originally not entitled to any waiver and if they objected the requisite contraceptive funds would be passed on to the employee in the form of an increased wage to compensate or the company would face substantial fines[5]. In 2012 Hobby Lobby Stores of Oklahoma, a closely held[6] corporation with hundreds of stores across the country, sued against implementing four[7] of the contraceptive methods it found to be tantamount to abortion and therefore in violation of its Christian beliefs[8].  Hobby Lobby sued under the Religious Freedom Restoration Act of 1993 (RFRA)[9] claiming its free exercise of religion would be illegally burdened by either compliance, or alternatively, the fee charged for noncompliance. RFRA is a federal statute that prohibits the Government from “substantially burdening” a person’s exercise of religion unless the Government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest[10].

The Supreme Court eventually heard Hobby Lobby’s case and ruled in part that religious beliefs and claims under RFRA are not forfeited by forming a closely held corporation as the Green family had done with Hobby Lobby[11]. Further, the Court ruled that the contraceptive mandate was not the “least restrictive means” of achieving the government’s purpose and therefore was an excessive burden on Hobby Lobby’s exercise of religion in violation of RFRA[12]. Justice Alito writing for the 5-4 majority posited that the government did not need to spend extra resources on establishing a new, “least restrictive,” alternative for religious for-profits because it had already created a “less restrictive means” in the form of the religious non-profit waiver accommodation[13]. Justice Alito reasoned that extending the waiver accommodation to for-profit, closely held religious companies was the best of both worlds because it allowed companies to remain pious while shifting the burden of cost onto the insurance companies and not onto the female employees[14]. Justice Alito further dismissed the dissent’s concern that the ruling would allow for-profit corporations to opt-out of any law they found disagreeable while claiming purely pretextual religious reasons[15].


Shifting the Burden

Just days after Justice Alito stated that the non-profit workaround “achieves all of the government’s aims while providing greater respect for religious liberty,[16]” while dismissing the concerns of the dissent, the Court directly undermined those sentiments by granting an emergency injunction to Wheaton College hours before the Court’s summer recess[17]. Wheaton sought injunctive relief to opt-out of the accommodation waiver contending that their signature on the form made them party to the perceived sin of contraception and burdened their exercise of religion[18]. Wheaton argued that since their signature on the accommodation form would causally trigger the insurance company to step in and provide the contraceptives they found sinful, they would be directly complicit[19]. Justice Sotomayor, joined by Justices Ginsburg and Kagan, added a fiery dissent to the unsigned emergency injunction calling attention to the fact that the slippery slope warned in the dissent of Hobby Lobby was quickly coming to pass with more accommodations for religious institutions and little to no consideration of the rights of women to comprehensive healthcare[20].

Not long after the injunction for Wheaton was granted other religious non-profits came forward, as Justice Sotomayor projected, objecting to having to sign the waiver and in the 2015 term the Court heard the issue under the consolidated cases of Zubik[21]. The Supreme Court heard oral arguments for Zubik in March and in a highly unusual move it did not rule on the merits, but instead sent the issue back to the lower court instructing the parties to again attempt to find a compromise[22]. The Court, previously quick to rule farther and faster than required on granting religious accommodations appeared suddenly to become indecisive. Many speculate that the sudden death of Justice Scalia, and the subsequent 4-4 ideological split of the Court, is the reason for the Court’s reluctance (or inability) to hand down a decision on the issue leaving injunctions in place until the appointment of a 9th justice[23].


No Resolution

While the Court tries to buy time with Zubik, the effects of previous decisions are being felt both in pending cases as well as in other areas of society. In August the rationale of Hobby Lobby was relied on by a U.S. District Judge in Detroit to rule that a funeral home was “well within its rights to fire a transgender employee because its owner had a religious belief that gender transition violated biblical teachings.”[24]  Until a full Supreme Court is restored it will be difficult to predict which way the law will go or to resolve the current hodgepodge of vaguely defined parameters.

The uncertainty of current precedent makes it difficult for the government, religious institutions, or insurers to know how to proceed in providing contraceptives to women as part of the healthcare they are entitled to. Until the recent stalemate of the court, the move has been to privilege the religious beliefs of institutions, relying on implicit religious evidence, over the reproductive rights of American individuals. The vacillation over burdens and accommodations obscures the fact that these discussions place women by the wayside and treat their agency and health as an inconvenience rather than a right. Birth control is an essential piece of a woman’s healthcare and it should not be bargained over or impugned regardless of how strong an employer’s religious views are.

[1] 42 USCS § 18001 (2016).

[2] 42 U. S. C. §300gg–13(a)(4) (2016).

[3] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2765 (2014).

[4] Id. at 2759.

[5] Id. at 2765.

[6] Hobby Lobby is owned privately and entirely by the Green family. Id. at 2765.

[7] The two IUDs, Plan B, and Ella. Id. at 2777.

[8] Id. at 2759.

[9] 42 USCS § 2000bb (2016).

[10] 42 U. S. C. §§2000bb–1(a),(b) (2016).

[11] Hobby Lobby Stores at 2759.

[12] Id.

[13] Id. at 2782.

[14] Id.

[15] Id. at 2761

[16] Dahlia Lithwick & Sonja West, Quick Change Justice, Slate (Sep. 19, 2016, 6:15 PM),

[17] Wheaton College v. Burwell, 134 S. Ct. 2806 (2014).

[18] Dahlia Lithwick & Sonja West, Quick Change Justice, Slate (Sep. 19, 2016, 6:15 PM),

[19] Id.

[20] Wheaton College v. Burwell, 134 S. Ct. 2806 (2014).

[21] Zubik v. Burwell, 136 S. Ct. 1557 (2016).

[22] Ariane de Vogue, Supreme Court sends Obamacare case back to lower court, CNN (Oct. 23, 2016, 12:47 PM),

[23] Id.

[24] Michael Hiltzik, Column The Supreme Court’s awful Hobby Lobby decision just spawned a very ugly stepchild, L.A. Times (Oct. 25, 2016, 3:30 PM),