MENU

Health Care Law

Zubik v. Burwell - Post-Argument SCOTUScast

SCOTUScast 4-20-16 featuring Roger Severino
Roger Severino April 20, 2016

On March 23, 2016, the Supreme Court heard oral argument in Zubik v. Burwell, the lead case in a consolidated series, with the other petitioners including Priests for Life, Southern Nazarene University, Geneva College, Roman Catholic Archbishop of Washington, East Texas Baptist University, and Little Sisters of the Poor Home for the Aged.

The Patient Protection and Affordable Care Act of 2010 (ACA) requires that group health plans and health insurance issuers provide coverage for women’s “preventative care,” or face financial penalties. Although the ACA does not define preventative care, the U.S. Department of Health and Human Services (HHS), relying on the Institute of Medicine, determined that the term encompassed, among other things, all FDA-approved contraceptive methods, including drugs and devices that could induce an abortion. Although the government exempted “religious employers” from this mandate, the exemption was narrowly defined and did not extend to petitioners. The government did, however, offer non-profit entities such as petitioners an “accommodation.”  

Under the accommodation, which was modified in the course of litigation, an objecting religious nonprofit entity complies if it provides the government with a notice that includes “the name of the eligible organization,” its “plan name and type,” and the name and contact information for any of the plan’s third-party administrators (TPAs) and health insurance issuers. Upon receiving the notice, the government notifies the objecting entity’s insurance company or TPA, which then must provide payments for the requisite contraceptive products and services. A number of objecting non-profits sought relief in various federal courts, arguing that the accommodation violated the Religious Freedom Restoration Act (RFRA) of 1993. The resulting litigation produced a series of fractured opinions and a split in the Courts of Appeals, with non-profit religious organizations prevailing in the Eighth Circuit but losing in a number of others.

After imposing a brief injunction on enforcement against petitioners while it considered various petitions for certiorari, the U.S. Supreme Court granted a number of petitions and consolidated the cases for oral argument on the following question: whether the HHS Mandate and its “accommodation” violate RFRA by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the Government has not proven that this compulsion is the least restrictive means of advancing any compelling interest. On March 29, the Court also issued a detailed order requiring the parties to brief “whether and how contraceptive coverage may be obtained by petitioners'’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

The Right to Try: America's Drug Approval Regime - Podcast

Civil Rights Practice Group Podcast
Darcy Olsen, Evan Bernick April 07, 2016

Should you need the government’s permission to try to save your own life? Today, the FDA regulates medications available to Americans, and it takes an average of ten years to bring a new drug to market. Every day Americans die from fatal diseases for which lifesaving treatments that now exist or are being developed are ruled too “dangerous” for commercial distribution. But how does that FDA standard apply to someone in the terminal stages of cancer or ALS? If terminal patients are given access and drug makers are given immunity, might drugs nearing approval be derailed if there is a bad result for a small number of patients? In her recent book, The Right to Try, Darcy Olsen goes inside the federal bureaucracy that she claims is stopping millions from accessing lifesaving treatments, lays out the case for expanding access to experimental medicines, and describes the ongoing national campaign to change these laws state-by-state.

Featuring:

  • Darcy Olsen, President and CEO, Goldwater Institute
  • Evan Bernick, Assistant Director, Center for Judicial Engagement, Institute for Justice

Little Sisters Go to Court: Arguments Heard in Little Sisters of the Poor Home for the Aged v. Burwell - Podcast

Religious Liberties Practice Group Podcast
Roger Severino March 24, 2016

Our expert gave our listeners background information on the Little Sisters of the Poor Home for the Aged v. Burwell case and reported on what transpired during oral argument. In the much-discussed case, the Court will decide an important challenge to the Affordable Care Act (ACA). At issue is the ACA’s contraceptive mandate, and whether it imposes a substantial burden on religious exercise or a violation of RFRA. Has the Department of Health and Human Services satisfied RFRA’s test for overriding a sincerely-held religious objection?

Featuring:

  • Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation

Little Sisters Go to Court: Little Sisters of the Poor Home for the Aged v. Burwell Oral Argument Preview - Podcast

Religious Liberties Practice Group Podcast
Michael P. Moreland March 22, 2016

In the much-discussed Little Sisters of the Poor Home for the Aged v. Burwell case, the Court will decide an important challenge to the Affordable Care Act (ACA). At issue is the ACA’s contraceptive mandate, and whether it imposes a substantial burden on religious exercise or a violation of RFRA. Has the Department of Health and Human Services satisfied RFRA’s test for overriding a sincerely-held religious objection?

Featuring:

  • Michael P. Moreland, Mary Ann Remick Senior Visiting Fellow and Concurrent Professor of Law, University of Notre Dame

Whole Woman’s Health v. Hellerstedt

Short video featuring Robin Fretwell Wilson and Teresa Stanton Collett
Robin Fretwell Wilson, Teresa Stanton Collett March 01, 2016

Teresa Collett, Professor of Law at the University of St. Thomas School of Law and Robin Wilson, Professor of Law at the University of Illinois College of Law, explain the upcoming Supreme Court case, Whole Woman’s Health v. Hellerstedt.

In 2013, Texas passed health and safety regulations designed to protect the health of abortion clinic patients. Whole Woman’s Health is an abortion provider challenging the law and claiming that these regulations are not only an undue burden on a woman’s liberty interest, but also that instead of protecting patient’s health, the restrictions are actually designed to legislate away abortion access.