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SCOTUS Briefing for the Everyday Humanist

Part 1: Birth Control under the Affordable Care Act

“Humanists … work to uphold the equal enjoyment of human rights and civil liberties in an open, secular society and maintain it is a civic duty to participate in the democratic process.”

–Humanist Manifesto III


The new term of the Supreme Court of the United States (SCOTUS) is well under way, and the Court’s decisions in the coming months will have a direct impact on the rights of millions of people living in this country.

The upcoming docket presents several cases that should be of interest to humanists. Challenges from right-wing activists seek to undermine the rights of several politically vulnerable groups, including women, through efforts to restrict access to abortion (Whole Woman’s Health v. Cole) and contraception (Zubik v. Burwell); public sector unions (Friedrichs v. California Teachers Association); voters (Evenwel v. Abbott); and immigrants (the Court’s anticipated review of President Obama’s November 2015 executive orders), among others.

This week, we’ll recap the challenge to the Affordable Care Act’s contraception coverage mandate by religious nonprofits who want to take their exemption further.

For those keeping track, this is the fourth time the ACA has been before the Court. The Court first upheld (by a slim 5-4 majority) the constitutionality of the Act itself in 2012, with Chief Justice Roberts’s opinion in National Federation of Independent Businesses v. Sebelius finding constitutional authorization for the ACA under Congress’s taxing power—a position even Congress had never argued. The notorious Burwell v. Hobby Lobby Stores followed in 2014, the case in which the Court held that for-profit religious employers could deny employees contraception coverage based on the religious objections of the company’s owners. In July 2015 SCOTUS upheld a portion of the Act again in King v. Burwell.

The seven cases before the Court this term specifically challenge the ACA’s exemption for religious employers and the process by which those employers opt out of providing coverage, and the Court will be analyzing the law under RFRA, which prohibits the government from substantially burdening one’s free exercise of religion unless it has a compelling reason to do so. And if a law must burden religious liberty, it must use the “least restrictive means” of securing that interest. In Hobby Lobby, SCOTUS found that requiring religious employers to pay for the coverage of certain contraception to which they objected for religious reasons was a substantial burden on their religious exercise that could have been avoided by less restrictive means. In other words, the Court found that the government could have satisfied its compelling interest in providing women with comprehensive healthcare, including contraception, in ways that would have been less restrictive of the religious exercise of the employers. For example, one “less restrictive” way the government could satisfy its compelling interest would be to provide universal contraceptive coverage, removing any burden on an employer’s religious exercise.

The question now is whether filling out a piece of paper and providing employee information to a third party presents the same burden.


  • Zubik v. Burwell (3d Cir. Feb. 11, 2015)

  • Priests for Life v. Burwell (D.C. Cir. Nov. 14, 2014)

  • Southern Nazarene University v. Burwell (10th Cir. July 14, 2015)

  • Geneva College v. Burwell (3d Cir. Feb. 11, 2015)

  • Roman Catholic Archbishop of Washington v. Burwell (D.C. Cir. Nov. 14, 2014)

  • East Texas Baptist University v. Burwell (5th Cir. June 22, 2015)

  • Little Sisters of the Poor Home for the Aged v. Burwell (10th Cir. July 14, 2015)

( covered the Little Sisters of the Poor verdict in the tenth circuit in August 2015)The government currently allows religious nonprofits with a religious objection to opt out of the contraception mandate by filling out a form or submitting a letter to the government to that effect. The central issue now before the Court resides in the religious exemption itself, and whether it presents a “substantial burden” on religious nonprofit schools, colleges, hospitals, and charities that wish to opt out of providing coverage. (The Court accepted an additional question in Little Sisters of the Poor v. Burwell, namely whether the mandate can be enforced when the nonprofit has a health coverage plan that does not stipulate a duty to obey the mandate, but we don’t get into that in this brief explanation.)

The cases before the Court are complicated and varied. All of the federal appellate courts that reviewed it uniformly upheld the mandate and the exemption for religious nonprofits until the Eighth Circuit split in September 2015, holding in Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services that the ACA’s requirement that religious nonprofits complete a notification form to opt out of providing coverage does impose a substantial burden on their exercise of religion, in violation of RFRA.

The challengers argue that it substantially burdens their religious exercise, not because they are required to provide contraception, but because their act of opting out sends a signal to the government that sets off a chain of events making them complicit in sin and violating their religious beliefs. In other words, when a religious employer opts out, the government subsidizes the contraception coverage, which may then lead to a doctor prescribing the offending medication to a female employee, who may in turn use it to prevent sperm from fertilizing her eggs.

Yes. At issue is whether the exemption—requiring religious nonprofit employers to fill out a form saying they will not provide contraceptive coverage because it contrasts with their religious views—is in itself a substantial burden on religious exercise.

Though rational people will probably find the issue ludicrous, the potential implications of this case are many. Existing precedent is hardly clear, and this case has the potential to expand the influence of religion in law and policy beyond even Hobby Lobby. History shows that the Court does not tend to inquire very deeply into the sincerity of one’s deeply held religious beliefs, and as a result, no one knows where to draw the line.

In the past, religious exemptions were generally allowed up to the point that they began affecting the rights of third parties. In Hobby Lobby, however, the Court found that the contraception coverage mandate violated RFRA to the extent that it caused a substantial burden on the religious beliefs of employers to require them to pay for religiously objectionable medicine, despite the fact that granting such an exemption would limit Hobby Lobby employees’ access to contraception.

Let’s not kid ourselves—this case is not about the government burdening anyone’s sincerely held religious beliefs—this is about an aggressive religious agenda and an attempt to restrict women’s access to contraception. These religious employers are opposing the exemption policy itself—not their fourteen-times removed involvement in the process. This case is really about women’s right to access affordable, comprehensive health care versus the ability of individuals to use religion to dictate what others can and cannot do.

The specific legal issues are complicated. Suffice it to say, this case has enormous implications for humanists and atheists, and all those who, as the Humanist Manifesto III says, “work to uphold the equal enjoyment of human rights and civil liberties in an open, secular society.” And an unfavorable outcome is not entirely unfathomable, especially given the extreme solicitude for religious belief exhibited by the current Court.

The briefing order is set and oral arguments, though not yet scheduled, are expected to take place at the end of March. See SCOTUSblog for more information.

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