For Immediate Release

Organization Profile: 

Supreme Court to Hear Case Brought by Employers Trying to Block Employees’ Birth Control Coverage

Zubik v. Burwell Raises Question Whether The Opt-Out for Employers Who Object to Contraceptive Coverage Violates Employer’s Religious Exercise

WASHINGTON - The United States Supreme Court will hear arguments today in a case brought by religiously affiliated nonprofit organizations that object on religious grounds to the Affordable Care Act’s requirement that health insurance companies cover contraception and to the process by which these employers can opt out of providing the coverage.

A religiously affiliated non-profit organization or a closely held for-profit corporation can currently lodge an objection with its insurer or the federal government.  The insurance company then provides contraception coverage directly to the employees in a separate insurance plan.

“This case presents a radical argument about the scope of religious liberty, one with grave implications for the constitution and for American women,” said American Civil Liberties Union Deputy Legal Director Louise Melling.  “The question is, will the Court sanction the use of religion to discriminate?  Our constitution indeed protects the right of religious freedom but shields Americans from having religious beliefs forced on them.”

Today’s case, Zubik v. Burwell, is a consolidation of seven cases from lower Courts.  To date, nine circuit courts have addressed the argument before the Court – that the opt-out process violates the federal Religious Freedom Restoration Act (RFRA).  Eight, including the four that heard the cases before the Court, have rejected the claim. 

Two years ago, in Hobby Lobby, the Court held that the contraceptive coverage requirement violated the Religious Freedom Restoration Act (RFRA) when it required for-profit organizations – like Hobby Lobby – to provide coverage over their religious objections.  In so holding, the Court emphasized that the government had “at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs,” namely the opt-out.  That opt-out process is the one now being challenged as violating RFRA.

This case is one occasion in which institutions are arguing their religion beliefs entitle them to discriminate or to deny services.  More than 100 bills have been introduced in 2016 alone that threaten to allow public officials and businesses to turn people away because of who they are. The Washington and Colorado Supreme Courts will soon hear cases in which businesses assert a right, based on their faith, to deny services to same-sex couples.  And today, the ACLU and the ACLU of Michigan will argue in a case where religiously affiliated hospitals are refusing women emergency abortion care.  

More on Zubik v. Burwell available at:

More on the ACLU’s work to stop discrimination in the name of religion:


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