Next Steps in Religious Expression and Health Care Reform: the Impact of Zubik v. Burwell

On May 16, 2016, the Supreme Court announced its decision to send back to the lower Courts of Appeals the seven cases consolidated in Zubik v. Burwell, which involved a challenge to the Affordable Care Act’s requirement that religious non-profit employers must either cover contraceptives as part of their health plans or submit a form to their insurer or the Federal Government stating that they object on religious grounds to providing contraceptive coverage. Currently, when notice is provided by an employer to the insurer or the federal government, the employees are funneled into a system established to provide contraceptive coverage directly to the employees without further participation by the employers.

Since the Supreme Court declined to address Zubik on the merits, uncertainty regarding the rights of religious non-profit employers to object to currently covered health care benefits will remain. Most importantly, it remains unclear if religious non-profit employers can block access to mandated preventive care, including contraceptive care, but also to other health services they may object to such as vaccinations, HIV screening, mental health care, or gender transition services, by invoking the Religious Freedom Restoration Act. Despite the recently released Affordable Care Act “Nondiscrimination in Health Programs and Activities” regulations, which prohibit discrimination on the basis of race, color, national origin, sex, age or disability, and do not include a religious exemption, further litigation as to how the mandates of the Affordable Care Act and the Religious Freedom Restoration Act interact may be forthcoming.   

This course places Zubik in the context of previous religious expression and health law cases, including Burwell v. Hobby Lobby. The course then discusses the unusual nature of the Supreme Court decision, as well as the case’s likely continued evolution. Lastly, the course focuses on the interplay between religious exemptions and health care law and policy, including discussing the new anti-discrimination regulations. This course is presented by Carmel Shachar, clinical instructor at Harvard Law School’s Center for Health Law and Policy Innovation.

Learning Objectives:

1. Understand the Religious Freedom Restoration Act and relevant portions of the Affordable Care Act
2. Evaluate the unusual outcome of Zubik
3. Explore the immediate impact of Zubik and likely evolution of the remanding cases
4. Assess potential future impact of religious exemptions on health care law and policy