I n the spring of 2016, the U.S. Supreme Court considered a set of challenges alleging that the contraceptive coverage regulations under the Affordable Care Act (ACA) violate the federal Religious Freedom Restoration Act (RFRA). Following oral arguments in which the eight sitting Justices appeared to be evenly divided, the Court unanimously declined to declare an answer in the set of seven consolidated cases, each brought by nonprofit religious entities with objections to the provision and use of contraceptives as well as to the process by which their objections may be accommodated under ACA regulations that require employers to provide contraceptive coverage in group health plans. The question at issue is whether the accommodation process—requiring employers with religious objections to inform the government of their objection and third-party insurers to provide required coverage to the employer's employees—would impose a substantial burden on religious exercise in violation of RFRA. The Court's consideration of these cases (consolidated under the case name Zubik v. Burwell and referred to collectively throughout this report as "the nonprofit challenges") followed its landmark 2014 decision, Burwell v. Hobby Lobby Stores, Inc. , and presented the Court with an opportunity to clarify the meaning of substantial burden on religious exercise under RFRA. However, the Court's disposition of the case provided no decision on the merits, instead vacating and remanding each of the cases to the respective federal appellate courts for reconsideration after allowing time for the parties to reach a compromise that would accommodate the employers' religious objections and the government's interest in ensuring contraceptive coverage for female employees. This report examines the current parameters on governmental restrictions on religious exercise. It discusses the history of federal protection offered under the Free Exercise Clause of the First Amendment and RFRA, and notes parallel protections available at the state level. It analyzes the current interpretations of RFRA as applied to the contraceptive coverage requirement of the ACA, including discussion of Hobby Lobby and a review of the lower courts' interpretations of the nonprofit challenges. Finally, the report highlights a range of issue areas of interest to Congress that may be affected by the Court's interpretation of RFRA. Hobby Lobby: Who May Claim Protection Under RFRA? In addition to the Court's clarification of the scope of "persons" eligible for protection under RFRA as a matter of statutory interpretation, the Court's analysis of the substantive protections of RFRA has been cited to support interpretations of "substantial burdens" in later cases (discussed in the following section of this report). Circuits) with instructions to reconsider the cases after giving the parties an opportunity to "arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women ... 'receive full and equal health coverage, including contraceptive coverage.'" Given Congress's primary authority in statutory law, there are a number of issues it may consider in the wake of a future decision on the meaning of substantial burden , including what impact the decision may have on a wide range of legislative issues. Because RFRA applies to all federal actions, and because state religious freedom laws may rely on related opinions for guidance in interpreting their own similar laws, both federal and state issues may be affected. However, as discussed earlier, a number of states have adopted state versions of RFRA, many of which include language similar to the federal RFRA that is at issue in the nonprofit challenges.
In the spring of 2016, the U.S. Supreme Court considered a set of challenges alleging that the contraceptive coverage regulations under the Affordable Care Act (ACA) violate the federal Religious Freedom Restoration Act (RFRA). Following oral arguments in which the eight sitting Justices appeared to be evenly divided, the Court unanimously declined to declare an answer in the set of seven consolidated cases, each brought by nonprofit religious entities with objections to the provision and use of contraceptives as well as to the process by which their objections may be accommodated under ACA regulations that require employers to provide contraceptive coverage in group health plans. The question at issue is whether the accommodation process—requiring employers with religious objections to inform the government of their objection and third-party insurers to provide required coverage to the employer's employees—would impose a substantial burden on religious exercise in violation of RFRA.
The Court's consideration of these cases (consolidated under the case name Zubik v. Burwell and referred to collectively throughout this report as "the nonprofit challenges") followed its landmark 2014 decision, Burwell v. Hobby Lobby Stores, Inc., which has had ongoing implications for a number of legal and legislative issues. Hobby Lobby expanded the scope of entities recognized as eligible for protection under RFRA, but left open a number of other questions about how far RFRA's protection may extend, including what governmental actions might constitute a substantial burden on religious exercise prohibited under RFRA. Federal courts have been divided on the standard for recognizing a substantial burden in many cases, particularly in challenges to the ACA regulations.
Providing no decision on the merits, the Court vacated the appellate court decisions in each of the seven cases and remanded those cases to the respective federal circuit courts with instructions to reconsider the cases after giving the parties an opportunity to "arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women ... 'receive full and equal health coverage, including contraceptive coverage.'" The Court's action effectively means that the legal debate over RFRA's protections will continue to be litigated and could be expected to return to the Court in a later term, which could be of interest related to the Senate's consideration of a nomination to fill the current vacancy on the Court.
A decision regarding what might constitute a substantial burden could have significant implications on RFRA claims not only related to the contraceptive coverage requirement, but also for a range of other issues being litigated in courts and considered in legislatures, both on the federal and state level. RFRA applies to all federal actions, unless specifically exempted by Congress, meaning that the impacts of its interpretation may affect a broad number of legislative issues. Additionally, a number of states have enacted state versions, the interpretation of which may be influenced by the Court's decisions. For example, organizations with religious objections to same-sex relationships have sought protection under RFRA for requirements to serve same-sex couples, including service by public accommodations; participation of religious providers in social service programs; and admission programs in religious institutions of higher education.
This report examines the current parameters on governmental restrictions on religious exercise. It discusses the history of federal protection offered under the Free Exercise Clause of the First Amendment and RFRA, and notes parallel protections available at the state level. It analyzes the current interpretations of RFRA as applied to the contraceptive coverage requirement of the ACA, including discussion of Hobby Lobby and a review of the lower courts' interpretations of the nonprofit challenges. Finally, the report highlights a range of issue areas of interest to Congress that may be affected by the interpretation of RFRA.