Attorney General Mark R. Herring announced today that Virginia has joined a coalition of 16 states and the District of Columbia in a friend-of-the-court brief in the U.S. Supreme Court case of Zubik, et al. v. Burwell et al., urging the Court to protect women’s access to contraceptive coverage under the Affordable Care Act (ACA).
“Virginia women should never have affordable access to contraception and family planning controlled by their employer,” said Attorney General Herring. “The law allows women to access the full range of healthcare services they are entitled to while still respecting the religious liberties of faith-based organizations, and I hope the Supreme Court will uphold this reasonable balance and accommodation.”
The ACA provides an accommodation for religious nonprofit organizations that object to its requirement that employer-provided health insurance plans contain coverage for preventative healthcare, including contraception. Through this accommodation, these organizations can simply opt out of providing contraceptive coverage to their employees by informing their insurance company or the federal government of their objection to this coverage. If an organization opts out, the insurer will then provide contraceptive coverage directly to employees at the insurance companies own expense. In the Zubik case, several nonprofit religious organizations filed suit against Sylvia Burwell, Secretary of the U.S. Department of Health and Human Services, arguing that this opt-out accommodation violates their religious beliefs.
Attorney General Herring and the 17 other attorneys general argue in the brief that the Court should not interpret the Religious Freedom Restoration Act (RFRA) in a way that defeats and interferes with the essential and compelling purposes of the ACA and its preventative contraceptive healthcare coverage requirements. As the brief notes, access to contraceptives is not only essential for public health, but is consistent with the intent of Congress in passing the ACA to ensure that all covered employees have access to no-cost preventive care, free of logistical and administrative barriers.
The brief argues that the ACA’s opt-out accommodation does not create a substantial burden and therefore does not interfere with or violate the rights of these organizations under RFRA. The brief also argues that the alternatives to this common-sense accommodation proposed by the religious employers would impose significant financial, logistical, informational, and administrative burdens on women seeking access to contraception. These burdens would fall hardest on women with the fewest informational and financial resources to overcome them.
The brief urges the Court to interpret RFRA in a manner that would not interfere with States’ goals and prerogatives to protect public health and promote gender equity. It was also joined by California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia.
In January 2106, Attorney General Herring joined 13 other states and the District of Columbia in signing a friend-of-the-court brief in the case of Whole Woman’s Health v. Cole, urging the U.S. Supreme Court to reverse a lower court decision that would substantially restricting access to abortion services in Texas.
In 2015, Attorney General Herring led a coalition of 23 states in helping to successfully defend access to affordable healthcare on the federal healthcare exchanges. Healthcare affordability assistance averaging $3,000 was threatened for hundreds of thousands of Virginians and millions of Americans. Virginia successfully argued for the right of its citizens to access the same affordability assistance that residents in other states receive in the federal district court, the Fourth Circuit Court of Appeals, and ultimately the U.S. Supreme Court.