ACS Issue Brief Examines Religious Exemptions from ACA Contraception Mandate

Professor Caroline Mala Corbin Explains Why Claim in Zubik v. Burwell Should Fail


March 14, 2015


Nanya Springer, Associate Director of Communications

(202) 741-0685,

WASHINGTON, D.C. – Six years after the Affordable Care Act (ACA) was signed into law, controversy continues to surround the legislation—particularly its mandate that employer-sponsored health insurance plans fully cover preventive care, including contraception. The latest legal bout, Zubik v. Burwell, will be heard by the Supreme Court on March 23 and involves the question: Does filing paperwork to obtain a religious exemption from the ACA’s contraception mandate impose a substantial burden on religion? In a new ACS Issue Brief, University of Miami School of Law Professor Caroline Mala Corbin answers no, it clearly does not.

As Professor Corbin explains, Zubik involves the claim by religiously affiliated nonprofit organizations that merely signing a form or sending a letter to extricate themselves from the process of providing contraception coverage to their employees would “facilitate” what they view as sin. The organizations’ view, she says, is that under the Religious Freedom Restoration Act (RFRA), “once a religious objector claims that a particular statutory requirement amounts to a substantial burden as a matter of religious belief, then, as long as they are sincere, it amounts to a substantial burden . . . as a matter of law.”

This, Professor Corbin says, is wrong—it is the job of courts to objectively evaluate what constitutes a “substantial burden” on religion. Otherwise, any sincerely held religious belief could be used to nullify federal law. Furthermore, she explains, “while courts may not draw conclusions about the objector’s religion, they should draw conclusions about the underlying legal or . . . factual bases for the religious claims.” Professor Corbin demonstrates that the petitioners’ assertions in Zubik are wrong as a matter of law because filing “paperwork does not cause contraception coverage. The Affordable Care Act does.” All the paperwork does, she says, is note an organization’s objection, at which point an insurance company or third-party administrator unconnected to the organization fulfills the ACA requirement at no cost to the organization.

The Issue Brief also includes a detailed explanation of the “strict scrutiny” analysis the Supreme Court must undertake if it finds the accommodation to be a substantial burden on religion. Professor Corbin notes that contraception is “crucial to women’s health” and explains how that will factor into the Court’s decision in the case.

Read the full Issue Brief here. To speak with the author, contact Nanya Springer at or (202) 741-0685.

The American Constitution Society for Law and Policy (ACS) is the nation's leading progressive legal organization. In its 15th year, ACS has a nationwide network of lawyers, law students, scholars, judges, policymakers and other concerned individuals dedicated to making the law a force to improve lives of all people. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit