Zubik v. Burwell

PETITIONER:David A. Zubik, et al.
RESPONDENT:Sylvia Burwell, Secretary of Health and Human Services, et al.
LOCATION: U.S. Department of Health and Human Services

DOCKET NO.: 14-1418
DECIDED BY: Roberts Court (2016- )
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 578 US (2016)
GRANTED: Nov 06, 2015
ARGUED: Mar 23, 2016
DECIDED: May 16, 2016

Donald B. Verrilli, Jr. – Solicitor General, for the respondents
Noel J. Francisco – for the petitioners in 14-1418, 14-1453, 14-1505
Paul D. Clement – for the petitioners in 15-35, 15-105, 15-119, 15-191

Facts of the case

In 2010, Congress passed the Affordable Care Act (ACA), which requires group health plans and health insurance issuers offering health plans to provide preventative care and screenings for women pursuant to the guidelines established by the Department of Health and Human Services (HHS). These guidelines include “approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” The regulations include an exemption from contraceptive coverage for the group health plan of a religious employer. The exemption does not mean that such services are not covered, but that they are not covered through a cost-sharing mechanism.

The petitioners are religious organizations that argue that the contraceptive coverage mandate of the ACA violates the Religious Freedom Restoration Act (RFRA), which Congress enacted in 1993, because the mandate requires these organizations to “facilitate” the provision of insurance coverage for contraceptive services that they oppose on religious grounds. In several separate cases, the relevant district courts issued injunctions against the government, and the relevant Courts of Appeals reversed. The appellate courts held that the religious organizations were unable to show that the contraceptive mandate substantially burdened the exercise of their religious freedom.


(1) Does the availability of a regulatory exemption for religious employers regarding the Affordable Care Act’s contraceptive mandate eliminate the substantial burden on those organizations’ exercise of their religious freedom?

(2) Do the Department of Health and Human Services’ guidelines satisfy the Religious Freedom Restoration Act’s demanding test for overriding religious objections?

(3) Do the Department of Health and Human Services’ guidelines violate the Religious Freedom Restoration Act when the government has not proven that the guidelines are the least restrictive means of advancing the compelling government interest?

Media for Zubik v. Burwell

Audio Transcription for Oral Argument – March 23, 2016 in Zubik v. Burwell

Audio Transcription for Opinion Announcement – May 16, 2016 in Zubik v. Burwell

John G. Roberts, Jr.:

Finally in case 14-1418, Zubik versus Burwell and the consolidated cases, the Court today is issuing a per curiam opinion which I will read.

Petitioners are primarily nonprofit organizations that provide health insurance to their employees.

Federal regulations require petitioners to cover certain contraceptives as part of their health plans unless petitioners submit a form either to their insurer or to the federal government stating that they object on religious grounds to providing contraceptive coverage.

Petitioners allege that submitting this notice substantially burdens the exercise of their religion in violation of the Religious Freedom Restoration Act of 1993.

Following oral argument this Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees through petitioner’s insurance companies without any such notice from petitioners.”

Both petitioners and the government now confirm that such an option is feasible.

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company, that is from petitioners’ supplemental brief.

The government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage, that is from the Government’s Supplemental Brief.

In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and DC Circuits.

Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.

We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.

The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance.

Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them.

This Court has taken similar action in other cases in the past.

We then cite three supportive examples from this Court from 2010, 2011, and 2014.

The Court expresses no view on the merits of the cases.

In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.

Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.”

That quote is from our 2014 Order in the case of Wheaton College versus Burwell.

Through this litigation, petitioners have made the government aware of their view that they meet the requirements for exemption from the contraceptive coverage requirement on religious grounds.

Nothing in this opinion, or in the opinions or orders of the courts below, precludes the government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage going forward.

Now because the government may rely on this notice, the government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.

The judgments of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion.

The opinion is unanimous.

Justice Sotomayor has also written a concurrence joined by Justice Ginsburg.

Now in light of the opinion I just read, we also grant, vacate and remand to the respective Courts of Appeals, those pending cases raising the same legal question as in Zubik which were filed after the proceedings in Zubik were commenced here.