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    04.22.16 Professor Nelson Tebbe Co-Authors Slate Op-Ed on Challenge to the Affordable Care Act Contraception Coverage
    Professor Nelson Tebbe

    Professor Nelson Tebbe co-authored the op-ed, “The Contraception Compromise,” recently featured on Slate. Professor Tebbe, along with co-authors Richard C. Schragger and Micah Schwartzman of the University of Virginia School of Law, examine Zubik v. Burwell, a case before the United States Supreme Court involving the question of whether religious institutions other than churches should be exempt from the contraceptive mandate in the Affordable Care Act. Under ACA, the U.S. Department of Human Services requires non-church employers to cover certain contraceptives for their female employees.

    An order of nuns called Little Sisters of the Poor challenged the government’s efforts to work around their religious objections to paying for health insurance that covers contraception. Now, the Little Sisters have notified the Supreme Court that as long as they don’t have to communicate their objection in a way that involves written notice, “their consciences are clear.”

    “They indicated a willingness to purchase plans that do not include contraceptive coverage, and they raised no legal objection to the government requiring the insurance companies that provide those plans to cover contraception for their employees,” the authors write. “The distinction seems highly formalistic. Under the court’s suggested compromise, the nonprofits still express their religious objection, but they do so by purchasing plans that don’t include contraceptive coverage.”

    The authors suggest the Little Sisters have strategic reasons for their embrace of the court’s proposed alternative.

    “On a 4-4 court, Justice Stephen Breyer is now the swing vote for Little Sisters and other cases where the lower courts ruled for the government,” they write. “A tie vote means that in those seven circuits the government wins, a big loss for the petitioners.”

    Professor Tebbe also was quoted recently in the Boston Herald. McGovern: Top court tie likely a defeat for Obama” concerned President Obama’s executive action concerning immigration reform, designed to shield millions of undocumented immigrants from deportation. A Supreme Court tie in this case would refer back to the lower courts, wherein a Texas judge held off Obama’s executive order.

    “The 4-4 split appears to be a very real possibility, and of course that means that the lower court decision would stand, invalidating President Obama’s executive action,” Tebbe said. “This could be a very, very important case.”

    Professor Tebbe teaches courses on constitutional law, religious freedom, legal theory and professional responsibility. His scholarship focuses on the relationship between religious traditions and constitutional law, both in the United States and abroad. His articles have appeared in Georgetown Law Journal, Journal of Religion, Michigan Law Review, University of Pennsylvania Law Review, and, most recently, Virginia Law Review. He is a past chair of the Law and Religion Section of the Association of American Law Schools and he is co-organizer of the Annual Law and Religion Roundtable.

    Read the Slate op-ed.

    Read the Boston Herald article.