Symposium: Workers remain at risk post-Zubik v. Burwell

Leslie C. Griffin is William S. Boyd Professor of Law at the UNLV Boyd School of Law.

Exemption.

That’s the dangerous word that snuck into the Court’s conflicted order in the contraceptive benefit requirement cases.

Zubik v. Burwell was supposed to be about employer accommodations, not exemptions, to the requirement that employees receive insurance coverage for their reproductive health care needs. Yet there the dangerous word is, buried in the penultimate paragraph of the per curiam opinion: “Through this litigation, petitioners have made the Government aware of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds.’”

Perhaps the Court meant accommodation. But this case was always about uncompromising exemptions, the dangerous word that harms church workers and threatens employees of religious organizations.

The goal of the religious non-profits from the start of this litigation was complete exemption from the reproductive health care benefit. Long before the Department of Health and Human Services (HHS) drafted regulations implementing the Affordable Care Act (ACA), the Catholic bishops and their allies lobbied that all and any organizations and individuals with moral objections to contraception must be completely exempt from the insurance requirement. The bishops’ original desired exemption included not only religious and secular non-profit and for-profit employers, but also individual employees who did not want to participate in an insurance plan that sponsored contraceptive coverage.

Step by step the contraception opponents have moved closer to their complete-exemption goal. The Obama administration first gifted them with the church exemption, which freed purely religious employers like houses of worship from the ACA’s preventive health care requirements. That exemption rested on the clearly erroneous theory that members of religious communities share uniform perspectives on contraception. With the church exemption, the rights of church worker secretaries, janitors, and teachers to make their own health decisions and enjoy the benefits of the ACA were quashed and quickly forgotten.

That church exemption then became the goal of the non-church religious organizations, schools, colleges, dioceses, and nuns who are the petitioners in Zubik. But the government gave them an accommodation: notify us of your objection to contraception and your insurance company will provide that coverage separately.

The religious non-profits rejected every effort at accommodation all the way to the Supreme Court. Accommodation was refused no matter what form it took – sign here, notify there, distance yourself from your insurance carrier everywhere – because exemption was the ultimate goal. The government found itself in constant negotiations with non-profits who would not compromise, negotiating against itself by offering various accommodating alternatives while the non-profits just said no.

Three plaintiff-friendly prongs of the Religious Freedom Restoration Act (RFRA) extended the controversy. Once plaintiffs establish a substantial burden on their religion, the government must prove that it used the least restrictive means to further a compelling governmental interest. Relying on the Court’s broad language from the first contraceptive benefit case, Burwell v. Hobby Lobby, the non-profits in Zubik repeatedly argued that any involvement in contraception (even signing one piece of paper) substantially burdened their religion. The least-restrictive-means element encouraged the non-profits’ non-compromise, allowing them to invent theoretical options (for example, federal contraception-only insurance policies) that drew them closer to the exemption. And the government fumbled its compelling-interest argument, talking about seamless contraceptive coverage while ignoring its compelling interests in remaining neutral in employer-employee religious disputes and prohibiting religions from dictating the law of women’s health.

The Court became complicit in the one-sided negotiations when, post-oral argument, it ordered the parties to dream up new accommodations that were even less restrictive for the non-profits than sending a brief notification to the government. The supplemental briefs generated many naïve and false hopes that the non-profits would compromise. Yet their new proposed alternative unequivocally described the complete exemption they had sought from the start:

Moreover, so long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication—petitioners’ RFRA objections would be fully addressed.

Now the Court’s remand, which technically decided nothing on the merits, prolongs the agony of watching the government jump higher every time the non-profits say no to their latest offer. The Court’s mild language suggests a compromise is in the works; it ordered only 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.’”

Justice Sonia Sotomayor’s concurrence with Justice Ruth Bader Ginsburg optimistically echoes the compromise possibility, noting:

Today’s opinion does only what it says it does: “afford[s] an opportunity” for the parties and Courts of Appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the Government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice. [emphasis added]

Yet that language, which is supposed to be more government-friendly than the per curiam opinion, reads: the remand is an opportunity to “reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection.” Thus the order encourages the non-profits to continue what they have done all along, namely keep rearticulating new religious objections to whatever alternatives the government offers until they get the church exemption.

The nonprofits’ strategy has been consistent with their long-term goal of making a wide swath of American life – schools, colleges, universities, hospitals, social-service agencies, and businesses – exempt from the law of women’s health.

And not only women’s health. Gay and lesbian, and now transgender, workers’ rights are threatened in religious workplaces throughout the United States. It should be unseemly that powerful religious leaders and the government continue to bargain away employees’ rights in the name of religious freedom. But that is what the non-profits’ dangerous exemption theory, the Court’s order, and RFRA all encourage. The repercussions extend far beyond the ACA’s contraceptive benefits requirements to undermine workplace equality and liberty in many settings.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]