Zubik v. Burwell, Part 6: The Accommodation is the Least-Restrictive Option

Photo: Demonstration

Flickr/Creative Commons—Joe Brusky

By Gregory M. Lipper

(Read Part 1, Part 2, Part 3, Part 4, and Part 5 of this series)

The plaintiffs in Zubik v. Burwell and its siblings seek to block their students and employees from receiving contraceptive coverage from third-party insurance companies and plan administrators. Even though the plaintiffs need neither provide nor pay for contraceptive coverage, they argue that the government can and must adopt one or more purportedly less-restrictive alternatives, including (1) providing contraceptives or contraceptive-specific coverage to women directly; (2) offering grants to other entities that provide contraceptives; (3) offering tax credits or tax deductions to women required to pay for contraceptives; or (4) expanding eligibility for programs that provide contraceptives to low-income women. (The University of Notre Dame, whose petition for Supreme Court review is pending, has also argued that it could provide coverage for natural family planning; the Seventh Circuit correctly noted that natural family planning “is not contraception at all.”)

These proposed alternatives would not achieve the government’s interest as effectively as the accommodation; they would, instead, impose financial or logistical barriers on women, thwarting their seamless access to contraceptives and demoting contraceptives to junior-varsity care. Women would be forced to identify and register for yet another new program, perhaps see a different doctor for contraception-related care, and possibly pay out of pocket. (For more on the problems with the proposed alternatives, see my organization’s brief on behalf of 240 students, faculty, and staff at religiously affiliated universities, as well as the brief of health law policy experts prepared by Hogan Lovells.)

By requiring women to jump through logistical hoops and incur additonal costs, the proposed alternatives would reduce access to and use of contraceptives. Studies show that even minor barriers can dramatically reduce contraceptive access:

  • Providing oral contraceptives quarterly instead of annually resulted in a 30% greater chance of unintended pregnancy and a 46% greater chance of abortion.

Consistent with this data, research reveals that minor changes to default rules for retirement savings reduce the number of people who save, moving food a few inches farther away from test subjects leads fewer people to eat, and raising the price of shipping from zero to a dime causes online sales to plummet.

Severing contraception from the rest of women’s healthcare also would thwart one of the Affordable Care Act’s goals: to equalize men’s and women’s health coverage. In adding the Women’s Health Amendment to the Act, Congress recognized that “women have different health needs than men, and these needs often generate additional costs.” Among other problems, “women of childbearing age spen[t] 68 percent more in out-of-pocket health care costs than men,” in part because “the cost of reproductive health care, including contraceptives, is significant, and it falls disproportionately on women.” A decision that rescinds women’s seamless access to contraceptive coverage would turn the Amendment on its head.

Not to mention that these inferior alternatives wouldn’t appear out of nowhere: Congress would have to enact them. Don’t hold your breath. Far from trying to expanding access to birth control, Congress has been trying to slash funding for it. And it turns out that many of the same groups fighting contraceptive-coverage regulations—including the U.S. Conference of Catholic Bishops—actually oppose government-funded contraceptives too.

Then there are the legal implications of the plaintiffs’ argument (also described in the brief of religious-liberty scholars). Courts have previously rejected free-exercise challenges to rules requiring employers to make Social Security payments, provide minimum wage and overtime compensation, and pay women the same as men. In each case, the court allowed the government to enforce the federal law, even though the government could, in theory, have made up the financial differences itself. Indeed, almost every regulation of the private sector could, in theory, be replaced by government funding; hence, under challengers’ logic, the government could never satisfy the least-restrictive-alternative requirement. But this is not and has never been the law governing religious accommodations.

As I’ve written before, Thomas Jefferson said, “It does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” He did not say, “My neighbor may pick my pocket and break my leg, so long as the government might someday refill my pocket and purchase my cast.” The objectors have been accommodated and then some; the Religious Freedom Restoration Act does not require the government to do everything itself; and the healthcare of the plaintiffs’ students and staff should not be held in limbo any longer.

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

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One thought on “Zubik v. Burwell, Part 6: The Accommodation is the Least-Restrictive Option

  1. Wrong again; the government need not require the /employer/ notify the government as to who the insurance provider is; if the employer sends notification of an objection, the government can query insurance companies to determine who the provider is.

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