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Dueling responses to the Court’s ACA birth-control idea

The Supreme Court on Tuesday drew one quite enthusiastic taker, and one definitely wary and troubled taker, for the Court’s own idea on a way to decide the seven cases the Justices are weighing in Zubik v. Burwell.   Both sides had been invited last month to file by Tuesday their reactions to the Court’s highly unusual initiative.  Now, each side will react by April 20 to what the other has told the Justices, and then the Justices will decide what to do next.

The government brief (discussed in more detail in this post) argued that the Court’s alternative would only work for religious non-profits that use an outside insurance company for health coverage for their employees and it warned of serious complications, but the religious non-profits’ brief (discussed in more detail in this post) insisted that the suggested approach could be made to work well for all of the institutions, including those who self-insure or use what are called “self-insured church plans.”  Both urged the Court to move ahead to decide the main legal question — does the current Affordable Care Act birth-control mandate violate the Religious Freedom Restoration Act?  Obviously, they called for conflicting results.

It was immediately obvious that neither side is going to be entirely content with what the other has told the Court.  The government’s strongest wish is that the Court not require any changes in the existing ACA birth-control rules, to which the non-profits continue to be strenuously opposed, and the non-profits’ strongest wish is to have the widest possible separation between themselves and the source of contraceptives, even if that undermines the “seamless” nature that the government argues is essential to make the ACA mandate work.

The Court, now functioning with eight Justices, appeared to be deeply divided over the mandate when the Justices held a hearing on it on March 23.   Six days later, in a genuine surprise, the Court floated its own compromise approach, asking lawyers on both sides to file new briefs reacting to the idea.

What the Court will do with the seven cases, when the new round of briefing is completed on April 20, is not clear at this point.  It has not indicated any desire to hold another hearing on the controversy.  And, given the unusual procedural and substantive legal turns that the cases have now taken, it is not at all obvious how the Court will work into a decision the reactions it has solicited.

If the Court had, in offering its own proposal, any notion that the two sides might have come fully together in favor of a common reaction, that aspiration was not fulfilled by filings that came in during the early evening.

(NOTE: The blog appreciates the assistance of counsel in providing access to the new filings.  The Court clerk’s office had closed at its usual hour in late afternoon, apparently planning to formally docket the new briefs on Wednesday morning.)

[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.]

Recommended Citation: Lyle Denniston, Dueling responses to the Court’s ACA birth-control idea, SCOTUSblog (Apr. 12, 2016, 8:41 PM),