On May 16, 2016, the U.S. Supreme Court issued an unsigned unanimous opinion announcing that it would not rule on the merits of the case regarding the contraceptive coverage requirement under the Affordable Care Act (ACA). The move is seen as an effort to avoid a four-to-four deadlock. The Court instead vacated the judgments of the lower courts and instructed the courts to afford the parties an opportunity to arrive at compromise. The opinion instructs the courts to allow the parties sufficient time to resolve any outstanding issues between them that would accommodate religious exercise while ensuring that women "receive full and equal health coverage, including contraceptive coverage."

In February, the California Medical Association (CMA) filed an amicus brief with the Supreme Court in support of the contraceptive-coverage provision for group health plans under the ACA. CMA joined the American College of Obstetricians and Gynecologists, Physicians for Reproductive Health and American Academy of Family Physicians, as well as other state medical associations and health care provider organizations, in filing the brief.

The issue in this case, Zubik v. Burwell, is whether the Religious Freedom Restoration Act of 1993 (RFRA) not only entitles religiously-affiliated non-profit corporations to opt out of providing contraceptive coverage themselves, but also prevents the government from arranging for third parties to provide separate coverage to their employees.

Under the ACA, employers with more than 50 full-time equivalent employees must provide health coverage for their employees or face fines in the form of a tax. The ACA also requires group health plans to cover certain preventative services at no cost to patients, including a full range of contraceptive coverage.

Religious institutions, including churches, temples and mosques, are exempt from the ACA's contraceptive coverage requirement. Nonprofit faith-based charities and religiously affiliated educational institutions and hospitals, however, are not automatically exempted from the requirement; rather, they are afforded an accommodation that requires them to notify the health plan or the U.S. Department of Health and Human Services of their religious objections. Such a notice then triggers independent birth control coverage for employees, students and their dependents who want it. After the U.S. Supreme Court’s 2015 decision in Burwell v. Hobby Lobby Stores, Inc., this accommodation was also extended to closely held for-profit entities that object to providing contraceptive coverage based on their owners’ religious beliefs.

The religiously-affiliated non-profit corporations in this case seek a complete exemption from the ACA’s contraception coverage mandate, rather than an accommodation. They contend that by providing notice of their objection they are facilitating the provision of insurance coverage for “morally objectionable” contraceptive services, which violates their rights under RFRA. The RFRA provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.

CMA's brief stressed the importance of widespread access to contraception as an essential component of health care for women of child-bearing age. The brief also argued that decisions concerning contraceptive use, like all health care decisions, should be made by patients in consultation with their health care professionals based on the best interests of the patient. This is best accomplished when contraceptive coverage is provided within the same overall framework as a woman’s other health care services in consultation with a woman’s chosen provider. The accommodation accomplishes this, while at the same time respecting an employer’s sincerely held religious objections to contraception.

For a copy of CMA's brief, click here.