If you have followed the recent developments in the Supreme Court’s
contraceptive-mandate cases at all, you may be scratching your head and
wondering what is going on.
You are not alone. Even the most seasoned Supreme Court watchers are
somewhat surprised and mystified by the challenge the Justices now face to sort
out a complex morass that more closely resembles a settlement conference or
legislative drafting session than an appellate case.
First some background. Zubik is
actually seven appeals from four separate federal appeals courts, all
consolidated into one case. The lawsuits were filed by non-profit religious
institutions that object on religious grounds to providing health insurance
coverage that includes access to certain forms of contraceptives for their
female employees. Their challenge is the fourth to be heard by the Supreme
Court to the Affordable Care Act, the sweeping health insurance law proposed by
President Barack Obama and passed by Congress but attacked in litigation since
the moment it took effect.
The Affordable Care Act mandates that health insurance plans, including
those contracted by employers for their workers, cover the cost of
contraception for women. Recognizing that some religious non-profits and
institutions subject to the mandate (most churches are exempt from the
requirement) might object on religious grounds, the Obama administration
offered a regulation that allowed them to opt out if they notified the
Department of Health and Human Services in writing of their religious
objection. At that point, the government would step in and arrange with
insurers to provide contraceptive coverage.
Many religious institutions still objected and filed suit, essentially
arguing that the act of providing written certification to the government was
what triggered the contraceptive coverage, making them complicit in a process
that is contrary to their religious views. They also complain that the current
plan imposes significant fines if they fail to comply. Their claims were not
made under the First Amendment because the Supreme Court has held that, if
Congress passes a law that is both generally applicable (that is, applies to
everyone equally) and neutral (that is, does not single out religion for
differential treatment), there is no requirement to exempt religion under the
religious freedom clauses of the First Amendment. So the religious institutions
knew that a First Amendment argument was unlikely to prevail.
Instead they argued that the mandate and proposed accommodation violated
their rights under the Religious Freedom Restoration Act (RFRA). The law says
government may not substantially burden the exercise of religious beliefs and
must regulate using the least restrictive means. The religious institutions
argue that the opt-out system adopted by the government is not the least
restrictive method of accommodating their religious objections.
If all of this sounds slightly familiar, it may be because, less than two
years ago, the Court ruled in the case of Burwell v. Hobby Lobby, by a vote of five to four,
that closely held corporations may have a religious identity that allows them
to object and opt out of providing contraceptive coverage as part of their
employee health insurance plans. But those were closely held companies
operating for profit, and these are non-profit religious institutions, so there
is a difference.
Apparently the Supreme Court, in the absence of the late Justice Antonin
Scalia, may believe that the best course of action is to try to find some way
to facilitate the contraceptive coverage required by law without any
involvement whatsoever by the religious non-profits. It is this effort that
seems so highly unusual if not unprecedented. Is this effort because the
eight-Justice Court found itself evenly divided after the oral argument on
March 23? We may never know, but that seems like a good bet.
Had there been a nine-member full Court at the oral argument in March, the
options available to the Court would have seemed to include: agreeing with the
non-profits that the government could find a narrower, less intrusive way of
administering the contraceptive requirement and reversing the courts of appeals
and sending the cases back for the government to work out a plan; ruling that
the government had come up with a reasonable, lawful way to accommodate the
objections of the religious organizations; or finding some middle ground that
could attract a majority of Justices.
With an eight-Justice Court and the possibility of an unsatisfying
four-to-four tie, however, the Justices took the highly unusual step of issuing
an order on March 29, a few days after argument, asking the parties to come up
with methods by which the contraceptive coverage could be provided with no
trigger or any other active involvement of the religious objectors.
The two-page order essentially tells both the religious institutions and
the Justice Department to find a new solution to the dispute, a step that seems
outside the usual role of the Supreme Court. Why is it so strange? First, the
Supreme Court has not yet ruled on whether the rights of the religious
institutions are being illegally burdened. Yet, the order seems to suggest that
the government needs to accept a new plan for contraceptive coverage that calls
for absolutely no involvement of the religious institutions other than having
insurance plans for their workers. Such a new plan would only be necessary if
the current one is illegal, but the Supreme Court is not in the habit of
telling us how it thinks a case may come out before actually deciding it.
Second, the order seems more in line with what a trial judge might do if he
were trying to pressure parties into a settlement conference and even
suggesting to them the possible terms of the settlement. The Court’s order gave
the lawyers a very specific directive to file new briefs that propose solutions
to resolve the dispute by having no triggering action or involvement of the
religious institutions in providing contraceptive coverage.
To be clear, it is not unusual for the Court, upon finding a government
regulation unlawful and after explaining the reason for that finding in a
written opinion, to leave it to government officials to figure out how to
rewrite the regulation and propose it anew to satisfy the legal problems. In
the normal course of a case, the Justices are not involved in those next steps
of finding the solution or signing off on the new version of the regulation,
unless the revision results in a new lawsuit that works its way back up to the
Court in a new appeal.
In Zubik, though, it seems the Court may actually review
and approve or reject proposed solutions as a way of resolving the case.
Lawyers for the government and the religious institutions have now filed their
briefs. The brief for the religious institutions suggests that they would accept
a plan in which their insurance companies provide contraceptive coverage
without any involvement by the employers, or – in the case of self-insured
institutions – through other insurers providing only the contraceptive
coverage. The government continued to maintain that the current opt-out plan is
legal and effective but urged the Court to resolve the issues clearly and
unambiguously.
How will this extraordinary legal battle end? We will find out in the weeks
ahead. The Court may still issue a conventional opinion resolving the legal
issues but then suggesting, or perhaps imposing, a new solution. This may avoid
the simple affirmance that results from a four-four tie and give the Justices
an outcome that a majority can support.
What seems unlikely to come out of this case is any greater resolution of
the burgeoning issue of when and how religious opt-outs must be accommodated
for government programs to which religious institutions or individuals object.
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