What Is a “Substantial Burden” on Religious Exercise—or Is It Best Not to Ask?

Document Type


Publication Title

Law & Liberty

Publication Date



We are in something of a lull in the Zubik v. Burwell litigation, the complex of cases brought by several nonprofit organizations, including the Little Sisters of the Poor, challenging the government’s contraception mandate and the particular “accommodation” it has offered these groups. At the end of March, the Supreme Court issued a rather peculiar order asking the parties to submit additional briefing on this question:

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.

It even offered a hypothetical example of how such an arrangement might work that seems sensible—except, of course, in situations involving self-insured plaintiffs, where such a solution wouldn’t work, at least from the plaintiffs’ perspective. The parties have now submitted their supplemental briefs and another round of replies is forthcoming.