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Contraceptive Coverage at the Supreme Court Zubik v. Burwell: Does the Law Accommodate or Burden Nonprofits’ Religious Beliefs?

Issue Brief
  1. The briefing order consolidates three cases for one brief:  Zubik v. BurwellPriests for Life v. Department of Health & Human Services, and Roman Catholic Archbishop of D.C. v. Burwell.  It consolidates the other four cases for the second brief: the Little Sisters, East Texas Baptist University v. BurwellSouthern Nazarene University v. Burwell, and Geneva College v. Burwell.

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  2. Zubik et al. v. Burwell et al.,  Emergency Application to Recall and Stay Mandate or Issue Injunction Pending Resolution of Certiorari Petition. April 15, 2015,  at page 17.

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  3. 45 C.F.R. 147.131(c)(2)(ii).

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  4. Ibid.

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  5. A participating issuer offering a plan through a Federally-facilitated Exchange may qualify for an adjustment in the Federally-facilitated Exchange user fee for payments made for contraceptive services for employers that self-certified for the accommodation. Adjustments of Federally-Facilitated Exchange User Fees:45 CFR § 156.50(d) and 156.80(d).

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  6. 26 C.F.R. § 1.414(e)-1.

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  7. Lederman, M. Who is “Zubik” in Zubik v. Burwell . . . and why is he allegedly complicit in the use of contraception? [Updated with list and categorization of al 37 petitioners]. November 8, 2015.

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  8. Church plans are exempt from regulation under the Employee Retirement Income Security Act of 1974 (ERISA)  unless they affirmatively opt in.  29 U.S.C. 1003 (b)(2); 26 U.S.C. §410(d).

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  9.   26 U.S.C. §500026 U.S.C. §9832.

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  10.   26 U.S.C. § 4980 (D).

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  11. ERISA Glossary, Health Plan Law.

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  12. Coverage of Recommended Preventive Services Under 26 CFR 54.9815-2713, 29 CFR 2590.715-2713, and 45 CFR 147.130 , July 14, 2015,  footnote 22

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  13. Little Sisters of the Poor et al. v. Burwell et al., Supplemental Brief for Government filed in 10th Circuit, July 22, 2014, at page 7.

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  14. Brief of Respondents, Burwell, et al. v. Zubik, Supreme Court of the United States February 10, 2016, at pages 54-61.

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  15. Burwell v. Hobby Lobby, Supreme Court opinion, June 30 2014 at page 28.

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  16. Burwell v. Hobby Lobby, Supreme Court opinion, June 30, 2014 at page 39.

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  17. Burwell v, Hobby Lobby, Supreme Court opinion, June 30, 2014, at page 28 (Kennedy, J., concurring); accord id. at pages 40-41 & footnote 23 (Ginsburg, J., dissenting).

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  18.   Little Sisters of the Poor et al. v. Burwell et al., Supplemental Brief for Government filed in 10th Circuit, July 22, 2014, at page 17.

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  19. 75 Fed. Reg. 34540 (2010).

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  20. Brief for Petitioners, Zubik, et al, v. Burwell et al.,  Supreme Court of United States, January 4, 2016, at page 55.

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  21. Brief of Respondents, Zubik et al. v. Burwell et al., Supreme Court of United States, February 10, 2016, at page 62.

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  22. Brief of Respondents in Opposition to Petition for Writ of Certiorari, Priests  for Life et al., v, Department of Health and Human Services, at page 12 citing United State Court of Appeals for the DC Circuit, Priests for Life et al. v. HHS et al decision issued November 14, 2014.

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  23. Burwell v. Hobby Lobby, Supreme Court opinion, June 30 2014 at page 44.

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  24. Burwell v. Hobby Lobby, Supreme Court opinion, June 30 2014 at page 41.

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  25. Sobel, L., Rae, M., & Salganicoff, A. Data Note: Are Nonprofits Requesting an Accommodation for Contraceptive Coverage?, Kaiser Family Foundation (Dec. 2015).

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  26. Tenth Circuit Decision, Little Sisters of the Poor et al. v. Burwell et al. Published July 14, 2015, at page 51 footnote 31.

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  27. United State Court of Appeals for the DC Circuit, Priests for Life et al. v. HHS et al decision issued November 14, 2014, at page  24 quoting in part United States Court of Appeals for the 7th Circuit,  Univ. of Notre Dame v. Sebelius, decision issued  February 21, 2014.

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  28. Tenth Circuit Decision, Little Sisters of the Poor et al. v. Burwell et al. Published July 14, 2015, at page 51, footnote 31.

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  29. 2015 Utah Laws Ch. 46.

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  30. Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. Feb. 22, 2012).

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  31. Conn. Agencies Regs. § 19a-580d-9.

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  32. Internal Revenue Service, Tax Guide for Churches & Religious Organizations 18 (2013), page 21.

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  33. Hobby Lobby’s plan year begins on July 1. In the midst of its lawsuit, Hobby Lobby changed the start of its plan year.   "According to the plaintiffs, the corporations' deadline to comply with the contraceptive-coverage requirement is July 1, 2013” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1125 (10th Cir. 2013).

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