Zubik v. Burwell, Part 5: These Exceptions are Unexceptional

Photo: Bronze IUD
Flickr/Creative Commons—Sarah Mirk

By Gregory M. Lipper

(Read Part 1, Part 2, Part 3Part 4, and Part 6 of this series)

Despite birth control’s considerable benefits, the challengers in Zubik v. Burwell argue that the government lacks a compelling interest in applying the contraceptive accommodation to religious objectors. No matter how important it is to ensure that women have access to contraceptive coverage, the challengers say, the presence of other exceptions to the coverage requirements makes the interest in providing contraceptive coverage less than compelling. If contraceptive coverage were truly important, the argument goes, then there wouldn’t be any exceptions at all.

This argument proves too much—way too much. Almost all laws have exceptions. As the government explains in its brief to the Supreme Court, “Numerous organizations are not required to pay taxes; half the country’s draft-age population is exempt from registering for the draft; and Title VII does not apply to millions of employers with fewer than 15 employees, see 42 U.S.C. 2000e(b). Yet no one would suggest that raising tax revenue, raising an army, and combating employment discrimination are not compelling interests.” Indeed, despite Title VII’s exemption for small employers, the Supreme Court in Hobby Lobby reiterated that “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race…”

Despite these examples, the plaintiffs claim that the government’s interest in contraceptive coverage is undermined by three exceptions: (1) employers with fewer than fifty employees need not provide health insurance at all; (2) houses of worship are exempted from the contraceptive-coverage requirement; and (3) grandfathered employers are exempted from some coverage requirements, including the one pertaining to contraceptives. But none of these make the government’s interest any less compelling.

Small Employers. The small-employer argument—maddening in its inaccuracy—goes like this: Because employers with fewer than 50 people need not provide insurance coverage at all, the government has left these employees without contraceptive coverage. This argument continues to get repeated, even in judicial opinions (see, for instance, the dissent in last month’s 11th Circuit decision rejecting a challenge to the accommodation).

But no matter how many times it’s repeated, this argument is still dead wrong. Yes, small employers do not have to provide insurance coverage to their employees. If they do provide coverage, however, that coverage must include all the required preventive services—including contraceptives. If, on the other hand, small employers don’t provide insurance at all, then their employees are eligible for subsidized coverage on the exchanges—and that coverage includes contraceptives too. Either way, women who work for small employers receive contraceptive coverage—full stop.

Grandfathering. The challengers also point to the “grandfathering provision,” which allows a health plan to maintain its preexisting coverage scope until the plan makes one of many possible changes—including changes to cost-sharing requirements, employer contributions, or covered services. In other words, a plan that declines to cover contraceptives (or other types of required preventive care) may do so only for as long as the plan refrains from making any of a number of other routine changes.

The grandfathering provision, in short, does not permit the type of permanent contraception blockade sought by the challengers in these cases. The percentage of employees in grandfathered plans has already dropped from 56% in 2011 to 25% in 2015. Most if not all plans will eventually lose their grandfathered status, as they will inevitably need to make changes. Don’t take my word for it: Counsel for Hobby Lobby—represented by the same organization that represents many of the plaintiffs in this round of cases—has explained: “[J]ust because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shift[ ] over time.” (In any event, most grandfathered plans already cover contraceptives, and so most of the 25% of employees in grandfathered plans are already receiving contraceptive coverage.)

Transitional measures like the grandfathering provision are common, moreover, even in laws that advance undeniably compelling interests. Indeed, at oral argument in Hobby Lobby, the Solicitor General pointed out the multiple transitional periods that were part of the Americans with Disabilities Act:

GENERAL VERRILLI: Well, the ­­the question would be whether there’s a compelling interest in compliance with these requirements. And I ­­I’d like to make two points in response to Your Honor’s question. First with respect to this issue of delay, which I think, Mr. Chief Justice, your question raised, and my friend on the other side has put a lot of weight on, I’d refer the Court to the ADA. I don’t think anybody would doubt that the Americans with Disabilities Act advances interest of the highest order. But when Congress enacted that, it put a two­-year delay on the applicability of the discrimination provision.

CHIEF JUSTICE ROBERTS: Well, isn’t that because you’re talking about building ramps and things like that?

GENERAL VERRILLI: No. No, Your Honor. There’s an even longer delay with respect to those kinds of provisions, but it’s just a basic prohibition of discrimination two­-year delay, and no one would doubt there’s a compelling interest here. …

It’s unsurprising that that important laws like the Americans with Disabilities Act and the Affordable Care Act take effect gradually. Important laws usually make lots of changes, and sometimes those changes need to be phased in to minimize disruption. That hardly suggests that the interests advanced by those laws are less significant.

There’s one final aspect of the grandfathering provision that undermines the challengers’ argument. Grandfathering isn’t specific to contraception; rather, it applies to all the Affordable Care Act’s preventive-coverage requirements. So if the challengers were correct that no provision subject to grandfathering advances a compelling interest, then the government would lack a compelling interest in ensuring that patients had access to other essential care—including colonoscopies, diabetes screenings, and the polio vaccine. That can’t be.

Houses of Worship. Perhaps the most remarkble argument made by the challengers is that the government does not have a compelling interest in these cases because women who work for houses of worship are not entitled to such coverage. But we have a long history in the United States of providing unique exemptions to houses of worship—including exemptions related to IRS paperwork and lobbying disclosures, as well as special protections against audits. In the plaintiffs’ view, though, any religious exemption provided to houses of worship must be extended to religiously affiliated nonprofits—including major national universities and large healthcare chains. That, in turn, would create a two-tier system of nonprofits: Religious nonprofits would be exempt from a wide range of laws, but non-religious nonprofits would have to comply with all of them.

In the short run, that type of regime might violate the Establishment Clause. And in the long run, the inability to tailor religious exemptions would make the government less likely to provide them to houses of worship in the first place. That concern is detailed in a brief filed by Professor Douglas Laycock, who typically supports broad religious exemptions but who warns that the challengers’ argument in these cases poses “a mortal threat to religious liberty.” He adds: “There are thousands of specific religious exemptions in U.S. law. If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become all-inclusive, many of them will not enact any religious exemptions at all. And they will start repealing the exemptions they have already enacted.”

This problem would be compounded by the need to extend house-of-worship exemptions not only to other religious nonprofits, but also to for-profit corporations. Recall that in Hobby Lobby, the Supreme Court required the government to extend the nonprofit accommodation to for-profit corporations as well. As a result, the tens of thousands of people who work for Hobby Lobby and other objecting for-profit corporations also depend on the accommodation for coverage. But if the challengers in the current set of cases were entitled to the same treatment as houses of worship, then so would Hobby Lobby and the other objecting for-profit corporations—and all of their employees would lose contraceptive coverage too. And if any exemption given to a house of worship must also be offered to a billion-dollar retail craft chain, the number and scope of exemptions provided to houses of worship would shrink. Which means that a victory for the plaintiffs in Zubik would be bad for both women’s health and religious liberty.

* * * * *

We’re almost there. In the sixth and final part of this series, I’ll examine the challengers’ arguments that even if the government’s interest is compelling, it must drop the accommodation and create an entirely new program to provide contraceptives or contraceptive coverage directly to the plaintiffs’ students and employees.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

One thought to “Zubik v. Burwell, Part 5: These Exceptions are Unexceptional”

  1. No, the violation of the Establishment Clause would be to say, “You over here qualify for an exemption because you are churchy enough but you over there don’t because we don’t think you are churchy enough.”

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