The Obama administration told the Supreme Court on Tuesday evening that it mostly wants to keep the Affordable Care Act birth-control mandate as is, but signaled that it would reluctantly accept a modest change — even while arguing that it is not clear whether doing so would avoid ongoing court battles.   The religious non-profits challenging the mandate in the combined cases of Zubik v. Burwell also were due to file their reaction to the Court’s idea on possible changes in the current mandate rules, but their brief is not yet available.

The government brief, responding to the Court’s unusual March 29 order seeking both sides’ reaction to the Court’s own potential compromise, kept its argument close to what it has been all along.  It contended that the changes it has previously made in the birth-control regulations provide religious non-profits with the assurance they need that they would not be involved in providing access to contraceptives for their employees.  Its brief thus opened with the point that no change should have to be made, to satisfy the demands of the non-profits, under the Religious Freedom Restoration Act.

The present approach, the government filing said, “could be modified to operate in the manner described in the Court’s only — but only at a real cost to its effective implementation.”   Requiring even a religious employer to write out its religious objection to contraceptives, it said, is a “minimally intrusive process.”  The non-profits involved in the case have never suggested something like the Court’s proposal, the filing added.

Even so, it went on to say, “if the Court determines that the existing process for invoking the accommodation must be modified in some respect in light of [the non-profits’] religious objections, it should make clear that the government may continue to require the relevant insurers to provide separate contraceptive coverage to [the non-profits’] employees” under other provisions in current regulations.

But it then immediately cautioned the Court that “a decision requiring a modification to the accommodation, while leaving open the possibility that even the arrangement as so modified might itself be deemed insufficient, would lead to years of additional litigation, during which tens of thousands of women would likely continue to be denied the coverage to which they are legally entitled.”

Later in the brief, it discussed further the possible modification that the Court had suggested.  If the Court concludes that the non-profits should not have to submit any writing of any kind to make known their religious objections to contraceptives under the ACA, “it should hold unenforceable those portions of the regulations that require an employer to provide written notice to HHS or  self-certification to its insurer, and to maintain a copy of the notice or self-certification on its records.”

RFRA, it added, should be interpreted to allow the government to require the non-profits’ insurance companies to provide the separate coverage for contraceptives for their employees “and their beneficiaries” under the existing ACA regulations on opting out by religious non-profits.

The government brief strongly urged the Court to move forward to decide the non-profits’ claims under RFRA, suggesting that the position the non-profit institutions have been taking “over many years” would still be raised against even the change the Court’s order had appeared to recommend.

Even if those institutions specifically involved in the seven cases now before the Court were to accept the Court’s new suggestion, the federal government said, many others in that category under the ACA may be likely to continue to raise the RFRA objections.  “A decision that held the present accommodation inadequate in some respect without fully solving the RFRA challenges [that the non-profits now before the Court] have presented would thus inevitably lead to uncertainty and continued litigation in the lower courts.”

[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 this case. The author of this post, however, is not affiliated with the firm.]

Posted in Zubik v. Burwell, Priests for Life v. Burwell, East Texas Baptist University v. Burwell, Little Sisters of the Poor Home for the Aged v. Burwell, Southern Nazarene University v. Burwell, Geneva College v. Burwell, Featured, Merits Cases

Recommended Citation: Lyle Denniston, U.S. would accept modest change on birth-control mandate — warily, SCOTUSblog (Apr. 12, 2016, 7:20 PM), http://www.scotusblog.com/2016/04/u-s-would-accept-modest-change-on-birth-control-mandate-warily/