Zubik v. Burwell & the Supreme Court

May 17, 2016


Lisa Mauti

Supreme Court Returns Zubik v. Burwell to Lower Courts to Resolve Access to Cost-Free Contraceptive Services to Women

“We urge the lower courts to move quickly and to consider the impact of their decision on the future of women’s preventative healthcare, especially as a prevention method for ovarian cancer.”

WASHINGTON DC—Yesterday, the Supreme Court announced that they would vacate the rulings of the Courts of Appeals in Zubik v. Burwell and other consolidated cases, in which certain religiously-affiliated employers challenged the government’s accommodation allowing employers who object to providing employer-sponsored contraception coverage (for religious reasons) to provide a notice of that objection.  The employers objected to the “opt-out” mechanism claiming a violation of the federal Religious Freedom Restoration Act.  The Supreme Court sent the case back to the lower courts, with instructions that the government and the challengers should work to develop a compromise that accommodates the challengers’ religious exercise, while, in the Court’s words, ensuring that women covered by the challengers’ health plans “receive full and equal health coverage, including contraceptive coverage.”

Ovarian Cancer Research Alliance (OCRFA) submitted an amicus brief in the case, noting that the use of oral contraceptives for five or more years can cut a woman’s risk of ovarian cancer in half.

“Lawsuits that jeopardize universal contraception coverage, such as Zubik v. Burwell create unnecessary barriers for women to access preventative healthcare. The Supreme Court’s decision not to issue a ruling on the merits keeps thousands of women in a position of uncertainty.  That said, we are relieved to read the Court’s statement that the government may take steps to ensure that the women whose health plans are at issue can obtain FDA-approved contraceptives without cost, even prior to a final resolution of this case. We urge the lower courts to move quickly and to consider the impact of their decision on the future of women’s preventative healthcare, especially as a prevention method for ovarian cancer,” said OCRFA Executive Vice President Calaneet Balas.

The practical impact of the decision remains to be seen, but the decision appears to confirm a pathway for the federal government to provide cost-free access to contraceptives for employees and students of non-profit religious hospitals, charities and colleges.  In postponing a ruling on the merits, the Supreme Court made clear that “nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans obtain, without cost, the full range of FDA approved contraceptives.”

Background on Zubik v. Burwell:
This consolidated case follows the 2014 case of Burwell v. Hobby Lobby, in which the Supreme Court ruled that “closely held” for-profit corporations may be exempted from the Affordable Care Act’s requirement to include contraceptive coverage as part of their employer-provided health insurance plans. In Zubik v. Burwell, several nonprofit entities challenged the government’s procedure by which employers with religious objections to contraceptives could be relieved of this requirement.  The employers claimed that the process of opting out itself violated their religious beliefs.  All but one of the nine circuit courts decisions ruled in favor of the government and upheld the accommodation the government developed to provide for the insurance coverage.

The Supreme Court heard the case on March 23, 2016, and, in an unusual move, later asked the petitioners (the religiously affiliated nonprofits) and the government (the side defending the Affordable Care Act) to submit supplemental briefs on whether contraceptive coverage could be provided to the employees of these religiously affiliated nonprofits through the employers’ insurance companies in a way that would not require the nonprofit employer to engage in the opt out process offered in the law’s accommodation. Although the parties did not agree to a resolution, the petitioners acknowledged that “their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.” The government also confirmed that this policy would be possible, while objecting on other legal grounds.  Ultimately, however, the Supreme Court returned the case back to the lower courts, without ruling on the merits, with instructions to parties to explore a compromise.

As argued in its amicus brief, OCRFA supports a solution that ensures that all women – regardless of employer – have access to contraceptives to reduce the risk of developing ovarian and other forms of cancer through cost-free access to oral contraceptives. Balas noted that “OCRFA hopes for a swift and uniform resolution by the courts that is consistent with the wealth of scientific evidence that has consistently confirmed that oral contraceptives can provide potentially life-saving health benefits for women in the battle against ovarian and other deadly gynecologic cancers.”


Ovarian Cancer Research Alliance (OCRFA) is the largest global organization dedicated to advancing private ovarian cancer research, advocating for increased federal research, raising awareness and furthering policies that support women and their families before, during and after a diagnosis. OCRFA, formerly the Ovarian Cancer Research Fund and Ovarian Cancer National Alliance, has led the way in advocacy, research and support for women and families for over 22 years.  

Posted on in Advocacy