In the 2014 case Burwell v. Hobby Lobby, the Supreme Court struck a balance, holding that the religious accommodation contained in the Affordable Care Act’s regulations provided the key to reconciling the rights of employers, employees, and the government.  By extending the accommodation for religious non-profit employers to closely-held for-profit companies, the ruling accommodated objecting employers, while still ensuring that their employees received critically important insurance.  In 2016, in Zubik v. Burwell, the Court refused to strike down the accommodation, giving the parties another opportunity to find a solution that respected the rights of employer and employee alike.

In 2017, the U.S. Departments of Labor, Health and Human Services, and Treasury issued interim final rules that made the accommodation optional and provided an unconditional exemption from the contraceptive coverage requirement for not-for-profit, educational, and for-profit employers whose owners possessed sincere religious or moral objections to contraception.  In defense of the exemption, Little Sisters and the Trump Administration argue that the religious accommodation violates the Religious Freedom Restoration Act and that an unconditional exemption is necessary to comply with RFRA.

Constitutional Accountability Center filed a friend-of-the-court brief in the consolidated cases on behalf of military historians which argues that accommodations of the sort contained in the Affordable Care Act’s regulations—which allow religious objectors to opt out while third parties fulfill their obligations—represent a longstanding method of ensuring religious liberty while also protecting the rights of third parties and furthering important governmental purposes. Conscientious objector provisions figured prominently in debates over the Bill of Rights, were present in numerous Revolutionary-era state constitutions, and have existed in federal draft laws since the Civil War.

Our brief on behalf of scholars in the field of military history demonstrated through a review of these many examples that what Little Sisters and other challengers of the accommodation suggested is an impermissible burden on free exercise is historically a common practice—accommodating conscientious objectors by shifting their obligations to third parties who do not share that objection.  In fact, religious accommodations have often required religious objectors to play a far more active role in shifting that responsibility than does the accommodation here, for example requiring religious objectors opposed to war to pay for a substitute to serve or take some other action to satisfy the important interests of the government.

The Supreme Court held that the Trump Administration had the legal authority to issue rules creating an unconditional religious exemption for employers from the Affordable Care Act’s contraceptive coverage requirement, though it left open the question whether the rule is arbitrary and capricious.  The ruling is a blow to all individuals in need of contraceptives and undermines the Affordable Care Act’s promise of guaranteeing access to contraceptive coverage.