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http://www.theatlantic.com/politics/archive/2016/03/a-puzzling-order-in-a-us-supreme-court-case-on-obamacare/475986/
Something strange is afoot at the U.S. Supreme Court. The justices
issued a highly unusual order Tuesday for the parties in Zubik v.
Burwell, one of this term’s most-watched cases.
Here’s the abridged version of the dispute: The Affordable Care Act’s
regulations require virtually all employers to provide health
insurance to their employees. They also require health-insurance
companies to include contraceptive coverage for women in their
plans at no additional cost. Religious nonprofits that object to
contraception may file a one-page form with the federal government,
at which point the insurance company will directly provide the
coverage to their employees without further involvement from the
nonprofit.
That accommodation is where the controversy begins. A group of
religious nonprofits, ranging from private Christian universities to
the Little Sisters of the Poor, argued that filing the form still requires
them to facilitate something their religious beliefs abhor. The
government counters that the accommodation simply allows the
nonprofits to opt out of the requirement, which doesn’t qualify as a
“substantial burden” under the Religious Freedom Restoration Act.
After the death of Justice Antonin Scalia in February, the case
seemed destined for a 4-4 ruling that would leave all lower-court
rulings on the issue intact. In practical terms, the contraceptive-
coverage mandate would survive everywhere except the Eighth
Circuit, which includes Arkansas, Iowa, Minnesota, Missouri,
Nebraska, and the Dakotas.
But Tuesday’s order muddles those predictions. It requires all
parties in the case to file supplemental briefs “that 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.” (“Petitioners” refers to the
nonprofits.)
The Court then offers a bit of explanation and more direction.
Petitioners with insured plans are currently required to
submit a form either to their insurer or to the Federal
Government (naming petitioners’ insurance company),
stating that petitioners object on religious grounds to
providing contraceptive coverage. The parties are
directed to address whether contraceptive coverage could
be provided to petitioners’ employees, through
petitioners’ insurance companies, without any such
notice from petitioners.
Then, in the closing paragraph, the Court outlines its own
hypothetical solution.
For example, the parties should consider a situation in
which petitioners would contract to provide health
insurance for their employees, and in the course of
obtaining such insurance, inform their insurance
company that they do not want their health plan to
include contraceptive coverage of the type to which they
object on religious grounds. 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. 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.
Finally, and perhaps most interestingly, the Court invites the
parties to “address other proposals along similar lines, avoiding
repetition of discussion in prior briefings.” The Court appears to be
inviting both sides to a brainstorming session of sorts.
So, what does all this mean?
For starters, the order only makes sense if there aren’t currently
five votes for the legal status quo. Justices Ginsburg, Breyer,
Sotomayor, and Kagan seemed ready to uphold the
accommodation after oral arguments. If Justice Kennedy had
provided a fifth vote to them, an order pondering alternative means
to provide contraceptive coverage would be pointless.
That would be quite a reversal for Kennedy, who unambiguously
wrote in favor the accommodation only two years ago in his Burwell
v. Hobby Lobby concurrence. “The accommodation works by
requiring insurance companies to cover, without cost sharing,
contraception coverage for female employees who wish it,” he
wrote then. “That accommodation equally furthers the
Government’s interest but does not impinge on the plaintiffs’
religious beliefs.”
A strong possibility, articulated well here by Greg Lipper, the
senior litigation counsel at Americans United for Separation of
Church and State, is that Kennedy isn’t satisfied with the
nonprofits’ proposed solutions if the accommodation is struck
down, and is hunting for less disruptive alternatives. That could be
bad news for the nonprofits if his hunt comes up empty, Lipper
suggests.
“Under the Court’s proposal, objectors wouldn’t have to do
anything other than tell their insurance companies what coverage
they want and what coverage they don’t want,” he notes. “If they
respond that even the Court’s proposal substantially burdens their
religious exercise, then it becomes even clearer that they object to
the independent conduct of third parties.”
Whatever the precise motivations, the order’s detail and emphasis
feel like a last-ditch attempt to avoid a deadlocked ruling. One can’t
blame the justices for trying. Without their intervention, a major
federal law will mean two different things in two different parts of
the country. Resolving these differences is the Supreme Court’s
most basic function—one it could fail to perform in this case and
others until its vacant ninth seat is filled.
Something strange is afoot at the U.S. Supreme Court. The justices
issued a highly unusual order Tuesday for the parties in Zubik v.
Burwell, one of this term’s most-watched cases.
Here’s the abridged version of the dispute: The Affordable Care Act’s
regulations require virtually all employers to provide health
insurance to their employees. They also require health-insurance
companies to include contraceptive coverage for women in their
plans at no additional cost. Religious nonprofits that object to
contraception may file a one-page form with the federal government,
at which point the insurance company will directly provide the
coverage to their employees without further involvement from the
nonprofit.
That accommodation is where the controversy begins. A group of
religious nonprofits, ranging from private Christian universities to
the Little Sisters of the Poor, argued that filing the form still requires
them to facilitate something their religious beliefs abhor. The
government counters that the accommodation simply allows the
nonprofits to opt out of the requirement, which doesn’t qualify as a
“substantial burden” under the Religious Freedom Restoration Act.
After the death of Justice Antonin Scalia in February, the case
seemed destined for a 4-4 ruling that would leave all lower-court
rulings on the issue intact. In practical terms, the contraceptive-
coverage mandate would survive everywhere except the Eighth
Circuit, which includes Arkansas, Iowa, Minnesota, Missouri,
Nebraska, and the Dakotas.
But Tuesday’s order muddles those predictions. It requires all
parties in the case to file supplemental briefs “that 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.” (“Petitioners” refers to the
nonprofits.)
The Court then offers a bit of explanation and more direction.
Petitioners with insured plans are currently required to
submit a form either to their insurer or to the Federal
Government (naming petitioners’ insurance company),
stating that petitioners object on religious grounds to
providing contraceptive coverage. The parties are
directed to address whether contraceptive coverage could
be provided to petitioners’ employees, through
petitioners’ insurance companies, without any such
notice from petitioners.
Then, in the closing paragraph, the Court outlines its own
hypothetical solution.
For example, the parties should consider a situation in
which petitioners would contract to provide health
insurance for their employees, and in the course of
obtaining such insurance, inform their insurance
company that they do not want their health plan to
include contraceptive coverage of the type to which they
object on religious grounds. 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. 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.
Finally, and perhaps most interestingly, the Court invites the
parties to “address other proposals along similar lines, avoiding
repetition of discussion in prior briefings.” The Court appears to be
inviting both sides to a brainstorming session of sorts.
So, what does all this mean?
For starters, the order only makes sense if there aren’t currently
five votes for the legal status quo. Justices Ginsburg, Breyer,
Sotomayor, and Kagan seemed ready to uphold the
accommodation after oral arguments. If Justice Kennedy had
provided a fifth vote to them, an order pondering alternative means
to provide contraceptive coverage would be pointless.
That would be quite a reversal for Kennedy, who unambiguously
wrote in favor the accommodation only two years ago in his Burwell
v. Hobby Lobby concurrence. “The accommodation works by
requiring insurance companies to cover, without cost sharing,
contraception coverage for female employees who wish it,” he
wrote then. “That accommodation equally furthers the
Government’s interest but does not impinge on the plaintiffs’
religious beliefs.”
A strong possibility, articulated well here by Greg Lipper, the
senior litigation counsel at Americans United for Separation of
Church and State, is that Kennedy isn’t satisfied with the
nonprofits’ proposed solutions if the accommodation is struck
down, and is hunting for less disruptive alternatives. That could be
bad news for the nonprofits if his hunt comes up empty, Lipper
suggests.
“Under the Court’s proposal, objectors wouldn’t have to do
anything other than tell their insurance companies what coverage
they want and what coverage they don’t want,” he notes. “If they
respond that even the Court’s proposal substantially burdens their
religious exercise, then it becomes even clearer that they object to
the independent conduct of third parties.”
Whatever the precise motivations, the order’s detail and emphasis
feel like a last-ditch attempt to avoid a deadlocked ruling. One can’t
blame the justices for trying. Without their intervention, a major
federal law will mean two different things in two different parts of
the country. Resolving these differences is the Supreme Court’s
most basic function—one it could fail to perform in this case and
others until its vacant ninth seat is filled.