Podcast: Supreme Court Hears ACA Birth Control Coverage Battle

Hosted by: David Weisenfeld

This podcast gives listeners a unique look inside the Supreme Court with on-the-scene coverage of Zubik v. Burwell, a high-profile challenge to the Affordable Care Act's (ACA's) contraceptive coverage requirement. The Court recently heard arguments in the case, and we feature the key questions on the justices' minds along with what the attorneys had to say.

The ACA requires employer-sponsored group health plans and health insurers to provide certain preventive services to employees at no cost. The Department of Health and Human Services has included contraception as part of that requirement. However, it allows religious nonprofits to opt out of directly providing contraceptive coverage by sending a form to the plan's health insurer or third-party administrator.

However, two dozen religiously affiliated nonprofits are claiming that the opt-out is insufficient. They argue that it places a substantial burden on their sincerely held religious beliefs and violates the Religious Freedom Restoration Act of 1993. The challengers' attorney Paul Clement told the Court that the opt-out form process "hijacked the employers' health plans."

But Solicitor General Donald Verrilli, Jr., arguing for the Obama administration, said that many of these employees may not share their employers' religious beliefs about contraception. He told the Court that the rights of those employees should not be extinguished.

Immediately following the arguments, a 4-4 tie in the case appeared possible. If such a result occurs, that would mean religious-based organizations in different parts of the country would have differing obligations towards their female employees, depending on the rulings of the lower courts in the circuits where they are located.

However, the Court may be seeking to avert a tie with a compromise solution. A few days after the argument, the justices took the unusual step of directing both sides to file supplemental briefs about a different health benefit plan accommodation than the one the Obama administration devised. A decision in the case is expected by the end of the Court's term in late June.

Additional Resources

Supreme Court Hears New ACA Contraceptive Coverage Challenge

Supreme Court Sides With Hobby Lobby in Affordable Care Act Contraceptive Coverage Case

What Employers Should Know About the Affordable Care Act