Supreme Court Hints at Way to Avert Tie on Birth Control Mandate

5 years ago

The Supreme Court on Tuesday issued an unusual order indicating that the justices are trying to avoid a 4-to-4 deadlock in a case pitting religious freedom against access to contraception.

The order, which was unsigned, directed the parties to file supplemental briefs in Zubik v. Burwell, No. 14-1418, which was argued on Wednesday. The case was brought by religious groups that object to providing insurance coverage for contraception to their female workers.

Women are guaranteed access to that coverage under the Affordable Care Act. After the religious groups said paying for such insurance made them complicit in sin, the Obama administration offered the groups an accommodation: If they object in writing and provide information about their insurance plans, the administration said, insurance companies and the government will pay for the coverage.

At Wednesday’s arguments, several justices indicated that they thought the accommodation violated the federal Religious Freedom Restoration Act because it allowed the government to “hijack” the insurance plans of the religious groups that are the petitioners in the case.

Tuesday’s order asked the parties to “address 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.”

The order sketched out how this might work, asking the two sides to address whether it would be acceptable for the groups to do no more than to buy insurance plans for their workers that do not include contraception coverage.

“Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage and would not be required to submit any separate notice to their insurer, to the federal government or to their employees,” the order said. “At the same time, petitioners’ insurance company — aware that petitioners are not providing certain contraceptive coverage on religious grounds — would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”

It is not particularly unusual for the court to ask for supplemental briefs, but Tuesday’s order was exceptionally elaborate and seemed to envision new regulations from the Department of Health and Human Services. It was almost certainly prompted, at least in part, by a desire to avoid a tie, which would automatically affirm the four appeals court decisions under review, all of which upheld the existing accommodation.

Were the court to deadlock, religious groups in different parts of the country would have conflicting obligations if they objected to covering contraception because one federal appeals court has struck down the accommodation.

“The parties may address other proposals along similar lines,” the order said. The first briefs are due April 12.


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