We now have US Supreme Court on decision on the most recent challenges to the Affordable Care Act’s Contraceptive Mandate–sort of. SCOTUS decided.. not to decide. It even said as much. As you probably remember Burwell v Hobby Lobby was the first case on this issue. SCOTUS essentially ordered the government to provide to closely held for-profit corporations the same exemptions it already provided to religious non-profits that object to providing as part of its health insurance coverage for certain types of contraceptives to women. Click here for review and for 
more details. This latest case is actually a consolidation of seven appeals by religious non-profit organizations. They argued that even the accommodation afforded by the government still made them complicit in what they believe on religious grounds to be a sin. Click here for review of that case. But wait a minute. SCOTUS agreed to decide this case, (Zubik v Burwell) and then after oral arguments, has refused to decide? Well, yes, pretty much. So what does all this mean? What happens now? Let’s explore further after the jump…
(images from slate.com)
Let’s do a recap of the accommodation under Burwell v. Hobby Lobby. After Hobby Lobby, employers objecting to providing contraceptives falling within the abortifacient category had to notify the government that they objected to providing employees health care coverage for such contraceptive methods. The government would then notify the insurers that they must nonetheless provide such coverage — at no cost to the employer. Per SCOTUS reasoning such an accommodation avoids violating the Religious Freedom Restoration Act, which says that the government may not “substantially burden” religious practice unless such “burden” is “narrowly tailored” to advance a “compelling governmental interest” . As stated above, the Zubik plaintiff-appellants say that even this arrangement violates the RFRA, because even asking for an exemption makes them complicit in providing abortifacients, which is, in their religious beliefs, a sin.
SCOTUS agreed to hear the consolidated appeal. Many anxiously awaited a decision. With Justice Scalia’s passing in February, the Court now consists of 4 Republican-appointed and 4 Democratic-appointed justices. During oral argument in March, the Court seemed divided, and subsequently issued a “supplementary briefing” order. Both sides were to suggest compromises. The order also included the Court’s own proposed settlement of the issue, that both sides were to consider: Employers with this specific religious objection would tell insurers they did not want to offer health insurance that provided coverage of abortifacient contraceptives. The insurance carrier would then offer health insurance that included coverage of abortifacient contraceptives at no cost to the employer. This way, women get access to those particular contraceptives, and the objecting employers would not be involved in their provision in any way.In Monday’s ruling, the Court reasoned that “[b]oth the petitioners and the government now confirm that such an option is feasible.”
So, the Court ordered a compromise then, right? Well, no. Instead it sent all 7 cases back to their respective Courts of Appeals, ordering them to give both sides “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” The Court also suggested that there is no hurry. Why not? Pursuant to an interim order, the employees are receiving the coverage in question, and the government cannot issue any fines or penalties to any of the challengers until the case is resolved. So, for now, it’s a draw, right? Weellll, maybe not.
The 7 petitioners challenging the mandate stated in supplemental briefs that they would be satisfied with a compromise that included providing the contraceptive methods in question “through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source”. The government, however contends that such coverage must be” seamless”, i.e. offered as part of regular coverage, citing studies showing that only seamless coverage will ensure that women will actually be able to use the benefit. Otherwise they would have to pay a separate premium and find a separate provider, which, according to government studies, greatly reduces their usage of contraception. The Court, in its opinion states that ““The Government has confirmed that the challenged procedures . . . could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” Justice Sotomayor in a concurring opinion argues that the “per curiam” opinion (the one presumably on behalf of the entire court) means that lower courts cannot approve any compromise that does not approve seamless coverage. Besides, says Justice Sotomayor separate contraceptive plans probably do not exist and, it is not clear if they would comply with federal law.
Assuming Justice Sotomayor’s assertions are true, what does this mean? The deck seems stacked slightly in the government’s favor. The employers probably won’t succeed in getting a compromise that segregates contraceptive coverage. So why should they settle? If they don’t and the case goes back up to SCOTUS, they risk being in front of a new justice that is not inclined to rule in their favor. If they do settle they at least have a chance to help fashion a solution that might still be more livable to them than one imposed SCOTUS with a new, unknown justice.
That said, this case may not affect most employers (for reasons which I indicated in my previous posts on this issue) but it is still one that many have watched with interest, so I felt compelled to write about it. But what’s up with deciding to decide and then deciding not to decide? SCOTUS specifically stated in its unsigned opinion that it was not deciding any of the issues on the merits. Can it do that? Is there precedent? SCOTUS says it’s been done before. Others say that the 3 cases it cites as precedent are so distinguishable that reliance on them as precedent is misplaced. So what happens now? We get to wait some more…
We’ll be back in two more days with a regularly scheduled post from The EmpLAWyerologist. Bye for now!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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