What's at stake for higher ed in the Supreme Court's health coverage case

Some institutions say their religious freedom and ethical standards are under threat

A Supreme Court case over a federal contraception coverage mandate and religious exemption has sparked debate at and among many religiously affiliated colleges and universities.

Background

The contraceptive coverage rules, which are being implemented under the Affordable Care Act (ACA), require most employers to offer contraceptive coverage to their workers. Religious nonprofits, including colleges, can request an accommodation, under which the government and insurers coordinate to cover contraception independently of the institution's involvement or funding.

Some religious nonprofits have challenged the accommodation in federal courts, claiming it violates the Religious Freedom Restoration Act (RFRA).

The RFRA requires the government to provide a "compelling reason" for measures that "substantially burden" religious beliefs. The law also requires the government to demonstrate that the measure in question is the least burdensome method of reaching its underlying goal.

Seven circuit courts have upheld the accommodation as permissible under the RFRA, while the 8th U.S. Circuit Court of Appeals ruled against the accommodation. The Supreme Court in November announced that it would hear a consolidated challenge against the accommodation.

Last week, the Supreme Court heard oral arguments in the case of Zubik v. Burwell, which includes seven evangelical Christian colleges as well as several nonprofit groups. If the Supreme Court rules in favor of the religiously affiliated organizations, thousands of women could lose contraceptive coverage through their insurance.

A ruling is expected in June.

Campus clashes over contraceptive coverage

Besides the seven institutions involved in Zubik v. Burwell, 30 other religiously affiliated colleges and seminaries have sued the government. The schools argue that the issue is not about the right to contraception, but rather, upholding religious freedom and ensuring that students, staff, and faculty abide by certain ethical standards.  

Not everyone agrees

However, not all women at these religiously affiliated colleges and universities agree. They argue that contraception is part of comprehensive health care, and that their schools have failed to take their needs into account.

In February, Americans United for Separation of Church and State filed a brief on behalf of 240 students, staff, and faculty at religiously affiliated colleges, who support contraceptive coverage. Most of the people who signed the brief either work or study at large Catholic universities that have not challenged the mandate, including:

  • DePaul University;
  • Fordham University; and
  • Georgetown University.

The brief was not signed by any women from the evangelical colleges that are part of the Supreme Court case. Most of those institutions are small and conservative, making it difficult for supporters of contraceptive coverage to voice their opinions, according to Gregory Lipper, a lawyer for Americans United. Some schools require faculty to sign faith statements or community covenants to ensure they adhere to religious and lifestyle objectives.

"I'm sure there are professors and staff that object," Lipper says. "It's just very hard to speak up."

Wheaton College is among the schools that have challenged the contraceptive coverage mandate in court. Last summer, it stopped offering student health insurance completely rather than signing a waiver that would have allowed students to obtain contraception off-campus.

But not all faculty members were on board with the plan to challenge the contraceptive rules. Leah Anderson, chair of Wheaton's political science department, says she and other faculty wanted to be consulted by the administration before it decided to pursue legal action. She also says there was no room for debate, leaving some students without any other options.

Wheaton says that as the court case proceeded, it consulted with a committee of community members to discuss the "ethical implications of the health care mandate." Further, the school says that while it is concerned "primarily about religious liberty," students, faculty, and staff "are responsible for their own actions" in abiding by the school's community covenant.

Notre Dame University is also embroiled in the fight over contraceptive coverage. In 2012, the university sued for an exemption from the rules in a case that is currently moving through the courts. That same year, doctoral student Kathryn Pogin co-authored a petition warning against imposing religious beliefs on those who do not share the school's views. More than 200 community members and alumni signed the petition.

Kristin Shrader-Frechette, a professor of philosophy and biological sciences and director of the Notre Dame Center for Environmental Justice and Children's Health, signed the petition.

"Although Notre Dame claims it does not want to deny women's rights to freedom of conscience, many female faculty members and graduate students say the opposite," Shrader-Frechette says. "They say they have faced overwhelming difficulties trying to obtain contraceptive coverage at the university."

Notre Dame spokesperson Dennis Brown says the university respects opponents' rights to their beliefs.

"We are not trying to stop anyone from using contraceptives," he says. "But we do think that it is a direct encroachment on the 1st Amendment right to religious liberty when the government requires organizations that oppose contraception on religious grounds to act as an agent in the distribution of contraception" (McMurtrie, Chronicle of Higher Education, 3/20).


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