Natalie Hurst, Associate Member, University of Cincinnati Law Review
In 2010, the Patient Protection and Affordable Care Act, commonly known as Obamacare or the ACA, became law. With its enaction, the ACA triggered legal controversy concerning buzzwords like “free contraception” and “religious freedom.” Dispute arose almost immediately between two groups: (1) employers and organizations who object for religious reasons to providing employees with contraception coverage and (2) employees who want their employer’s insurance to provide them with no-cost access to contraception.
United States jurisprudence features the values of accommodation, tolerance, and respect for divergent views—until it comes to women’s affordable access to contraception. This divide is apparent in how the U.S. Supreme Court (“the Court”) has handled and decided litigation pertaining to the ACA, religion, and contraception that has come before it. During an oral argument concerning exemptions for religious non-profits, Chief Justice Roberts framed it best when he asked: “Well, the problem is neither side in this debate wants the accommodation to work . . . Is it really the case that there’s no way to resolve those differences?” The argument and solutions continue to be black and white: one side wins and one side loses with no compromise to account for the competing interests. In the three cases concerning the ACA and religious freedom that have come to the highest court, the Court has avoided the central question: Is there any way to resolve this controversy and accommodate both sides? As of now, the Court has only addressed the employer’s side of the issue while hoping the employee’s side would be addressed elsewhere. However, it is becoming apparent that either (1) the Court will have to resolve this dispute and accommodate both sides or (2) Congress will have to edit the ACA’s exemptions or enact new legislation to provide employees with affordable access to contraception.
II. The ACA Contraception Mandate
Unless there is an exception, the ACA requires employers to provide insurance that covers “preventative care and screenings” for women without “any cost sharing requirements.” However, the statute does not specify what types of preventative care must be covered. Instead, the ACA gives the Health Resources and Services Administration (“HRSA” or the “Administration”) broad authority to make that determination. The Administration endorsed the Women’s Preventative Services Guidelines, which provided that employers must provide coverage for all contraceptive methods approved by the Food and Drug Administration (“FDA”).
Four FDA-approved methods of contraception may prevent an already fertilized egg from developing further, a process some people some consider an abortion. Moreover, some people with sincere religious beliefs object to all forms of contraception. To address these concerns, the ACA entirely exempted churches from mandatory contraception coverage and provided religiously-affiliated nonprofits with the ability to claim an exemption and alternative coverage options. To qualify for the nonprofit exemption on account of religious objections, an employer must certify that its organization holds itself out as a religious organization and opposes providing coverage for some or all contraceptive methods.
III. Three U.S. Supreme Court Cases
A. Burwell v. Hobby Lobby
In 2014, the controversy of the ACA, contraception, and religious freedom came before the Court for the first time. In Burwell v. Hobby Lobby, owners of for-profit businesses objected to the contraception mandate and sued the federal government. The petitioners claimed that the Religious Freedom Restoration Act of 1993 (“RFRA”) entitled them to an exemption from the contraception mandate based on their sincerely-held religious beliefs. In a 5-4 decision, the Court held that some “closely-held” for-profit businesses may be exempt from the contraception mandate due to RFRA’s protection. However, the Court limited its decision to businesses so “closely-held” where a small group of individuals own and are deeply involved in the governance of the business. Moreover, the religious exemption did not extend to publicly held for-profit corporations. Finally, the Court maintained that while the government’s interest in providing women with free access to contraception was compelling, the government should figure out a way to provide coverage of contraception without forcing businesses to do so.
Essentially, the Hobby Lobby decision provided a remedy for those on the religious objectors’ side of this controversy, but it did not provide a remedy to those on the other side—those who want their employer’s insurance to cover free access to contraception. Justice Ginsburg’s dissent emphasized that religious beliefs must not encroach on the rights of third parties. She argued that the majority’s holding allowed for-profit business owners’ faith to infringe on female employees’ rights under the ACA to access affordable contraception.
B. Zubik v. Burwell
In 2016, while the late Justice Scalia’s seat was still vacant on the Court, the second ACA, contraception, and religious freedom case came before the Supreme Court. This time, in Zubik v. Burwell, it was primarily owners of non-profit organizations suing the federal government. Though the ACA provided many non-profits with the ability to claim an exemption from providing the mandatory contraception coverage, the petitioners claimed that the requirement to submit a notice of their religious objection was burdensome and illegal under RFRA. After hearing oral arguments, the Court issued an unsigned opinion and did not decide on the merits of the case. Instead, the Court remanded the case back for the lower courts to decide an approach that “accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal coverage…” Essentially, the Court remanded the case back to the lower courts to have them resolve the central issue: how to “respect the nonprofits’ religious beliefs but still allow the female employees to receive full contraceptive coverage.”
C. Little Sisters of the Poor
Finally, in 2020, the third and most recent ACA, contraception, and religious freedom case came before the Supreme Court. In response to the Zubik decision and under the direction of the Trump administration, the Departments of Health and Human Services, Labor, and the Treasury imposed two rules which expanded the ACA’s church exemption to include an employer that “objects…based on sincerely held religious beliefs” and provided a “moral exemption” for employers who had sincerely held moral objections to contraception. In Little Sisters of the Poor v. Pennsylvania., two states challenged the two new exemptions, contending that the departments did not have authorization under the ACA or RFRA to enact the exemptions. In a 7-2 decision, the Court rejected this argument and held that the ACA gives the HRSA “virtually unbridled discretion to decide what counts as preventive care and screenings” and similar discretion to “identify and create exemptions.” Moreover, the Court held that it is either the lower courts’ or Congress’s responsibility to alter or limit the ACA’s exemptions, and that the Court will only interpret the ACA.
However, as Justice Kagan pointed out in her concurrence, the Court did not reach a decision on whether the exemptions are “arbitrary and capricious”—that is, whether they were the product of reasoned decision-making, and whether the exemptions are too broad. Justice Kagan gave an example that “even publicly traded corporations” can “claim a religious exemption,” as can employers “with only moral scruples.” Essentially, by focusing on procedure and statutory interpretation, the Court decided that the ACA allows for these broad exemptions. Moreover, the Court maintained that it will not address perceived issues with the exemptions as it is the lower courts’ or Congress’s job to do so.
The Court has adopted an avoidance strategy that has failed to truly resolve the tension between the ACA’s contraception mandate and its religious exemptions. The contraception mandate will remain a contentious issue for those on both sides of the argument and for the Court. As Justice Kagan suggests in her surprising concurring opinion in Little Sisters, the dispute will go back to the lower courts for them to weigh in on whether the expansion of the exemptions was the product of reasoned decision-making, signaling that the litigation will continue. Moreover, depending on the results of the November election, a change in administration could lead to efforts to narrow or eliminate the exemptions, thus resulting in more litigation.
Each of the three cases demonstrate the Court’s avoidance strategy—that the Court does not want to decisively rule on which side should win the war. Incidentally, both the Hobby Lobby and Little Sisters decisions were plainly battles won by employers who object to providing contraception coverage to their employees. Moreover, the decisions even greatly expanded employers’ rights by affording them broad protection under RFRA and for now allowing employers to object on ambiguous “moral” grounds. Though these decisions say a lot about the Court’s attitude towards employers’ rights, the majority opinions say little about the employees’ side of the argument. The Zubik decision spelled out the Court’s avoidance strategy—the Court does not want to be the one to decide how to accommodate both sides and prefers for the solution to come from somewhere else, either through lower court interpretations or through Congress amending the ACA’s exemptions.
The Court’s avoidance strategy fails to adequately address women worker’s countervailing interest in contraception coverage. Justice Ginsburg warned that the Little Sisters decision “leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and absent another available source of funding, to pay for contraceptive services out of their own pockets.” Moreover, Justice Ginsburg highlighted that, with its decision in Little Sisters, the Court “casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
Additionally, the Court’s avoidance strategy and decisions also conflict with the Court’s own precedent concerning religious exemptions from generally applicable laws. By avoiding adequately addressing the employer’s side of the issue, the Court has failed to uphold this country’s values of accommodation, tolerance, and respect for divergent views. The Court laments that Congress could choose a different path for providing employees with access to affordable contraception but ignores the fact that this is the way Congress has chosen to achieve its goal. The Court has simply avoided an entire half of the dispute by focusing almost exclusively on expanding the rights of employers and corporations through First Amendment religious freedom protections. The Court has provided an unprecedented personal right to for-profit corporations (with its Hobby Lobby decision) and has allowed for the expansion of the exemptions from not only religious objections but also ambiguous, moral objections (which caused the controversy in Little Sisters in the first place). In doing so, the Court has ignored its own precedents that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”
Though religious freedom is a powerful interest for the employer’s side, these religious interests should not infringe upon the interests of others when a neutral law of general applicability, such as the ACA’s contraception mandate, is concerned. There is an equally compelling argument for the other side: providing women with the equal opportunity to fully participate in society. Providing women with affordable access to contraception increases women’s college enrollment, participation in the labor force, and economic independence. Moreover, there is a critical need to provide women with free—not just low-cost—access to contraception, as studies have shown that even low co-pays between six and ten dollars prevented women from being able to obtain contraception prior to the ACA.
The ACA, contraception, and religious freedom cases are not simply First Amendment religion cases; they are also women’s rights and equal opportunity cases. Rather than punting the issue to the lower courts or Congress, the Court should address the women’s rights issue head on, following the precedent cited by Justice Ginsburg’s Little Sisters dissent—that the ACA’s contraception mandate is a neutral, generally-applicable law where individuals (or corporations) cannot evade their responsibility to follow the law based on their religious beliefs. The Court has focused too closely on the idea that Congress could come up with a different way to accomplish its goals. In doing so, the Court fails to afford weight to its own precedents that religious beliefs cannot relieve someone (or corporations) from complying with neutral laws. Ultimately, the Court has refused to check corporations’ right to free exercise to account for the impact on the employees’ countervailing rights.
Though the Court has precedent that would allow it to fully enforce the ACA’s contraception mandate, the Court has demonstrated that it is unwilling to do this. Moreover, the Court has demonstrated its willingness to greatly expand religious rights of corporations and employers at the expense of employees’ rights. It is likely that the Court will never provide the solution that will accommodate both sides. Because of the Court’s unwillingness to resolve this dispute, it will likely be up to Congress to either (1) limit exemptions under the existing ACA framework or (2) come up with new legislation to provide employees with free access to contraception.
It is unclear if Congress or the lower courts will do the Court’s bidding. It is entirely likely that the Court will be faced with more litigation concerning these same issues—whether employers must provide employees with insurance that covers free contraception and whether employees can rely on such accommodation. For six years now, the Court has only accommodated employers’ religious interests while avoiding the other issue, hoping the employees’ interest will be addressed elsewhere. It is time for the Court to heed its own order and arrive at a compromise that accommodates employees’ full contraceptive coverage while respecting organizations’ religious freedom. However, with the Court’s demonstrated unwillingness to do so and with the conservative shift occurring on the bench, the Court is unlikely to ever reach a solution that limits the broad rights it has afforded to employers while also accommodating the employees’ countervailing interest. Because of this, Congress is likely going to have to either re-work the ACA’s framework to provide this accommodation to both sides or come up with entirely new legislation to provide employees with free access to contraception.
 Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111–148, 124 Stat. 119 (2010). 42 U.S.C. § 18001 et seq.
 See e.g., Lara Cartwright-Smith & Sara Rosenbaum, Controversy, Contraception, and Conscience: Insurance Coverage Standards Under the Patient Protection and Affordable Care Act, Public Health Rep. (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3407856/.
 Transcript of Oral Argument at 30, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020) (No. 19-431).
 42 U.S.C.S. § 300gg-13(a)(4).
 Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,724, 8,725 (Feb. 15, 2012).
 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 697-98 (2014).
 45 C.F.R. § 147.131(a).
 Hobby Lobby, 573 U.S. 682.
 42 U.S.C.S. § 2000bb.
 Hobby Lobby, 573 U.S. at 697-98.
 Id. at 719. The decision expanded RFRA’s definition of a “person” to include corporations.
 Id. at 728-29.
 David Masci, The Hobby Lobby decision and the future of religious-liberty rights, Pew Research Center (June 30, 2014), https://www.pewresearch.org/fact-tank/2014/06/30/the-hobby-lobby-decision-and-the-future-of-religious-liberty-rights/.
 Hobby Lobby, 573 U.S. at 740 (Ginsburg, J., dissenting).
 Zubik v. Burwell, 136 S. Ct. 1557 (2016).
 Id. at 1559.
 Id. at 1560.
 Amy Howe, Opinion analysis: Court rejects challenge to exemptions from birth-control mandate, SCOTUSblog (July 8, 2020), https://www.scotusblog.com/2020/07/opinion-analysis-court-rejects-challenge-to-exemptions-from-birth-control-mandate/.
 Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).
 Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792, 47,812 (Oct. 13, 2017).
 Little Sisters, 140 S. Ct. at 2371.
 Id. at 2380.
 Id. at 2397-2400 (Kagan, J., concurring).
 Howe, supra note 27.
 Little Sisters, 140 S. Ct. at 2400 (Ginsburg, J., dissenting).
 Employment Div. v. Smith, 494 U.S. 872, 879 (1990) quoting U.S. v. Lee, 455 U.S. 252, 263, n.3 (1982) (Stevens, J., concurring). This is also an argument that Justice Ginsburg cites in her Little Sisters dissent.
 Joint Economic Committee, The Economic Benefit of Birth Control and Access to Family Planning (Feb. 2020), https://www.jec.senate.gov/public/_cache/files/bb400414-8dee-4e39-abd3-c2460fd30e7d/the-economic-benefits-of-birth-control-and-access-to-family-planning.pdf.
 National Women’s Law Center, The Affordable Care Act’s Birth Control Benefit: Too Important to Lose (May 2017), https://nwlc.org/wp-content/uploads/2017/05/BC-Benefit-Whats-At-Stake.pdf.
 Little Sisters, 140 S. Ct. at 2400, n.1 (Ginsburg, J., dissenting).
 For example, in Hobby Lobby, the Court narrowly decided to accommodate the interests of only “closely-held” corporations. But, in Little Sisters, the Court greatly expanded the rights of any corporation or employer to object to the contraception mandate on religious or moral grounds. Again, in both decisions, the court accommodated the employers’ side of the dispute and left the employees’ side unaccommodated, leaving that responsibility to Congress or the lower courts.
 In the wake of Justice Ginsburg’s passing and the likelihood of a conservative replacement, it is unlikely that the Court will ever afford a solution to accommodate the women’s rights issue involved in these cases.