Supreme Court May Have Found Way Forward in Contraception Case

The eight-person Supreme Court is looking for a compromise in Zubik v. Burwell — and it might make most everyone happy.

In the case, various religious nonprofits are suing the federal government over the HHS mandate, the requirement to provide contraception coverage in employees’ health insurance plans. There is currently an opt-out option, but the Little Sisters of the Poor, the co-plaintiffs, and their supporters do not believe that the opt-out is strong enough and thus that they are still complicit in providing contraception. They say, therefore, that the HHS mandate is a violation of their religious freedom.

Since Justice Antonin Scalia’s death, the Supreme Court has been short-staffed and prone to 4-4 splits. Facing the prospect of a tie, the Court on March 29 issued a call for “supplemental briefs,” as a way to look for a compromise that would enable employees to obtain contraceptive coverage without “requir[ing] any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The call for a compromise may have done the trick.

Father Frank Pavone, the head of Priests for Life, which is one of the plaintiffs in the case, lauded the Supreme Court’s move. Saying that in the past, the federal government has told religious objectors “my way or the highway,” Pavone says that the Court “may have just ordered a detour.”

Calling the move “greatly encouraging,” Pavone outlines two aspects of the call for compromise which the religious objectors find particularly heartening.

“First, the Court is deferring to our religious beliefs. In the only stance that is proper to it, the Court is acknowledging that we, the believers, are the ones who draw the line between behavior that is acceptable or unacceptable to our religion. It is not the role of the Court or the government to draw that line for us or to second-guess our beliefs.

“Second, the Court is asking us to identify a way for the government to pursue its interests in a way that is less restrictive of our religious freedom than the current 'accommodation' provides.”

While Pavone interprets the call for a supplemental brief as a detour, commentators on the other side have interpreted it differently.

“In its own supplemental brief, the government grumpily insists that the court’s scheme does not differ significantly from the accommodation that the the [sic] nonprofits are challenging,” Mark Silk writes. “And the government is right.”

In Silk’s view, the religious groups opposed to the HHS mandate “caved” in the face of a split court. With Scalia’s sudden death, they knew they couldn’t win, so they took the next best option available.

Ian Millhiser of ThinkProgress basically agrees. Summarizing the Court’s call for supplemental briefs, Millhiser writes:

“In other words, rather than filling out a form provided by the government — or otherwise raising its objection in the way dictated by federal regulators — this alternative solution would require a religious objector to ‘inform their insurance company that they do not want their health plan to include contraceptive coverage’ at the time when they initially contract with the insurance company. If that seems like a mighty fine hair to split, that’s because it is.”

Millhiser then raises one potential problem — the federal government may not be legally permitted to set up such a program because of existing law like the Employee Retirement Income Security Act.

“Should the government have the authority to do so, however, then Tuesday’s order suggests that the Court is willing to give an 80 percent victory to the Obama administration,” Millhiser writes.

If this is the case, then the government and the objectors should be able to come to an agreement that makes sure employees can access contraception while religious freedom is respected.