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.
Let’s examine what has happened in the case of Zubik v. Burwell and why it seems so unusual.
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.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Scholars of Religious Liberty, Sarah Barringer Gordon, et al., in support of the respondents in Zubik v. Burwell. However, the author of this post is not affiliated with the firm.]