WASHINGTON – It will be up to the lower courts to decide how to work out religious exemptions under the Affordable Care Act’s contraception mandate, following the Supreme Court’s decision to remand Zubik v. Burwell back to the U.S. Court of Appeals for the 3rd, 5th, 10th, and District of Columbia Circuits.
In an unusual move, on May 16 the Supreme Court vacated the lower court rulings related to Zubik v. Burwell and has remanded the case back to the four appeals courts that had originally ruled on the issue.
At issue in the case is the implementation of the Affordable Care Act’s contraception mandate and specifically how nonprofit religious employers can opt out of directly paying for their employees’ contraception. The federal government had created a workaround that required employers to submit a form stating that they have religious objections, but the plaintiffs asserted that the process itself was a violation of their religious freedom.
In March, the high court asked all parties in the case to submit additional briefs outlining how contraception could be provided without requiring notice on the part of the employers. After reviewing the briefs, the Supreme Court justices concluded that “such an option is feasible.”
“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,’ ” the justices wrote in the decision. “We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.”
The Supreme Court made no decision about the merits of Zubik v. Burwell.
Dr. Sara Imershein, a clinical professor at George Washington University and an ob.gyn. at Planned Parenthood in Washington, said the decision was a disappointment because it requires the courts to sort out a workaround to the contraception mandate when the government has already put one in place. Dr. Imershein, who is a reproductive rights advocate, commented on the news in a video interview while attending the annual meeting of the American College of Obstetricians and Gynecologists.
Dr. Mark S. DeFrancesco, ACOG president, expressed the college’s disappointment in the Supreme Court’s decision.
“ACOG strongly believes that contraception is an essential part of women’s preventive care, and that any accommodation to employers’ beliefs must not impose barriers to women’s ability to access contraception,” Dr. DeFrancesco said in a statement. “We encourage the lower courts to adopt a solution that ensures that coverage is provided seamlessly ‘through petitioner’s insurance companies.’”
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