Community split for SCOTUS contraception mandate showdown

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A line forms to enter the Supreme Court on Monday, the first day of oral arguments since the death of Justice Antonin Scalia left the court with eight justices. The court will hear arguments in Zubik v. Burwell next month. Photo by Kevin Diestch/UPI
A line forms to enter the Supreme Court on Monday, the first day of oral arguments since the death of Justice Antonin Scalia left the court with eight justices. The court will hear arguments in Zubik v. Burwell next month.
Photo by Kevin Diestch/UPI

Liberal and conservative Jewish groups are squaring off on opposite sides of a Supreme Court case whose decision could have a long-term impact on the Affordable Care Act’s contraception coverage mandate for employer-provided health insurance.

Next month, the court is to hear arguments in Zubik v. Burwell, which seeks to determine whether the mandate violates the Religious Freedom Restoration Act. That 1993 law says that the government may not impose a burden on a person’s free exercise of religion, unless doing so “furthers a compelling governmental interest.”


The Affordable Care Act, or Obamacare, grants religious exemptions to faith-based organizations such as churches and nonprofits for providing contraceptive coverage. But it requires that either the employee pay for contraceptive services out-of-pocket or that the insurer make payments to a third party. This exemption was expanded to include closely held corporations in the 2014 case Burwell v. Hobby Lobby Stores, Inc.

Liberal and conservative Jewish organizations view the case from diametrically opposed positions. Those in the liberal camp say protecting women’s health is the priority in the case. Conservatives, in this case Orthodox organizations, view the case as a matter of preserving freedom of religion from government interference.

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Ilana Flemming, manager of advocacy initiatives at Jewish Women International, said that her organization has followed similar cases since the Hobby Lobby decision. JWI signed onto an amicus brief along with other women’s health organizations that support the government’s position.

“I think that as a Jewish organization, we’re guided by our faith values, but religious freedom should be a shield, not a sword,” Flemming said. “Religious freedom means that every person is free to worship as they choose, make personal decisions guided by their own faith and values, and not have the beliefs of others — including their employer — imposed upon them.”


Flemming said JWI believes that the opposing argument does not jibe because under the RFRA there is a compelling government interest to ensure that the ACA provides contraceptive coverage.

“We feel that the principle of religious freedom is protected on the side of the government,” she said.

“The challenge of not having Affordable Care Act coverage is a challenge to the accommodation process itself.”

The main objection being raised by the plaintiffs is that the very act by an organization of filling out a form waiving the specific coverage is itself a violation of religious freedom — something Flemming said is a simple task.

“As far as the government’s position, it’s a minimal burden on the employer that they’re just notifying the government that they don’t want to provide this coverage,” she said.

Nate Lewin, a Washington attorney who helped author a friend-of-the-court brief on behalf of the Orthodox Agudath Israel of America, said the main concern in the case is not the law’s mandate, but rather the unequal treatment of religious institutions by the government.

He said that the government gives greater amounts of religious freedom to “houses of worship,” than to religious “independent institutions” not associated with worship and that this distinction violates the RFRA.

“The fact is, the line that government is trying to draw in that case is contrary to Jewish tradition,” he said. “The notion that the government can draw a distinction in terms of a church and other religious institutions is wrong.”

Lewin said he is not arguing that contraceptive coverage mandate is itself a violation of religious freedom, but is simply asking for all religious organizations that provide health insurance to be treated the same across the board.

“I don’t doubt that what [Flemming] says are Jewish values, but if in fact the government is going to grant an exemption under Obamacare, that exemption should be granted to all religious institutions,” he said.

With the recent death of Supreme Court Justice Antonin Scalia, the possibility of a 4-4 tie in Zubik v. Burwell is likely and would mean that seven lower court rulings upholding the mandate would stand. University of Baltimore law professor Christopher Peters said that would be a temporary fix.

“In the short term, it would be a victory for the government,” he said. “In the long term, it doesn’t really resolve the issue, and it would take the Supreme Court taking up the issue again and making a binding decision to actually to resolve the issue.”

Peters said that given the current dynamics on the court, a number of scenarios could play out in the case, which is scheduled to be argued March 23. He said it is possible that the case could move forward this term if more than four justices come out in favor of the government’s position.

But he thinks it will likely wait until the next term that begins in the fall. It could wait until 2017, after a new president has taken office and a ninth justice is appointed and confirmed.

“If you have a decision of the Supreme Court that reaches a 4-4 tie then that has no legal effect, in essence,” he said.

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