In the 2014 case Burwell v. Hobby Lobby, the Supreme Court held that the accommodation for religious nonprofits could be extended to closely-held for profit companies that objected on religious grounds to the ACA’s contraceptive mandate. In the Court’s view, this compromise would effectively exempt objecting employers from the contraceptive coverage requirement while still ensuring that the female employees of the objectors received coverage. Following the Court’s resolution of Hobby Lobby, numerous religious nonprofits filed lawsuits in federal courts arguing that the accommodation on which the Court’s compromise in Hobby Lobby relied substantially burdened their religious exercise under RFRA. The Supreme Court granted petitions for review on this subject in cases from the Third, Fifth, Tenth, and D.C. Circuits on November 6, 2015, and subsequently consolidated the cases.

On February 17, 2016, Constitutional Accountability Center filed a friend-of-the-court brief in the consolidated cases on behalf of military historians which argued 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 Zubik and other challengers to the accommodation suggested is a “textbook substantial burden on religious 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 heard oral argument on March 23, 2016. On March 29, 2016, the Court (with only eight Justices since the death of Justice Scalia in February 2016) ordered the parties to file supplemental briefs addressing whether and how contraceptive coverage could be obtained by employees through the insurance companies of religious nonprofits, but in a way that does not require any involvement of the religious nonprofits beyond their own decision to provide health insurance without contraceptive coverage to their employees. Supplemental briefs from both parties were filed on April 12, while replies were filed on April 20.

On May 16, 2016, the Court issued a per curiam opinion, vacating the judgments of the courts below and remanding the cases to their respective U.S. Circuit Courts of Appeal. The Court instructed the Third, Fifth, Tenth, and D.C. Circuits to afford the parties an opportunity to arrive at an approach that accommodates religious exercise while also ensuring that women receive full and equal health coverage, including contraceptive coverage. The Court explicitly stated that it was expressing no view on the merits of the case, thus leaving the issues presented in the case unresolved.