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Still a gap on Court’s birth-control idea

Distance remained on Wednesday between the two sides in the controversy over the Affordable Care Act’s birth-control mandate, with each continuing to emphasize problems they have with each other’s views rather than trying to reach for a common approach.  The final round of briefs in reaction to the Court’s own idea for a possible compromise have now been filed — the challengers’ and the federal government’s.

With those filings in the combined cases of Zubik v. Burwell now available to the Court, the Justices can move back into private discussions on whether a majority can be put together to rule on the legality, under the Religious Freedom Restoration Act, of the contraceptive mandate.  There is no sign that, having held a hearing on March 23 and then having floated on March 29 a possible frame for a decision, the Court will want to hear more from the lawyers before going ahead.

The Court’s proposal was to separate the religious non-profit hospitals, charities, and colleges from a health insurance plan that would be the source of contraceptives for the non-profits’ female employees and students.  That drew what could be read as an acceptance by the non-profits and a grudging acceptance by the Obama administration.  Each side, though, added what appeared to be conditions on their willingness to go along.  Those initial reactions were sent to the Court last week.

On Wednesday, each side told the Court how it felt about the other’s reaction.  In summary, the non-profits said that the government was clinging too much to the idea, objectionable to them, that they must take a specific step to gain a separation from the process of providing contraceptives, and the government said that the degrees of separation that the non-profits demand from the source of contraceptives simply would not work in the real world of health insurance and state laws governing plans.

The non-profits’ lawyers continued to stress that the government’s concession that its approach could be modified was, by itself, sufficient to show that the existing rules for the ACA mandate are illegal under the Religious Freedom Restoration Act.  They criticized the government for having argued that there was no need to change the existing rules, saying that was fatal to the legality of the mandate.

In addition, they said, the government was still trying to gain an assurance that the non-profits would have some health insurance coverage that the government could “hijack” to achieve its objective of assuring women’s access to birth-control devices and techniques.

Again, as in their first reaction, the non-profits said that “true separateness” — between them and any arrangement for access to contraceptives — is the only approach that would protect their religious objections to contraceptives and thus to satisfy RFRA.

The non-profits also sought to counter the government’s suggestion that, even though those involved in the specific cases now before the Court would go along with the Court’s suggestion, there are many others that might not.  The approach that the Court outlined in its March 29 order, the new filing said, would deter other religious groups from continuing a challenge to the ACA mandate, because that suggestion does point a way to decide the Zubik cases without violating RFRA.

In its new brief, the federal government’s lawyers criticized the degree of separation that the non-profits had told the Court had to be established for the mandate not to violate RFRA.  The non-profits had suggested that a separate insurance policy would be needed, confined only to providing contraceptives, and that would be operated entirely independent of the non-profits’ own health coverage.  That, the federal government said, would not be workable.

It is not clear, the government lawyers said, that state laws would allow a contraceptives-only policy, and it is doubtful that any such policies are now available in the insurance marketplace.

Moreover, the brief said, the government pondered a contraceptives-only policy as one alternative when regulations were being drafted for the ACA mandate, and found that insurance companies had said that state laws would make reliance on such policies unworkable.

The federal government also strenuously argued, again, that the religious non-profits do not have a right under RFRA to dictate the terms of the government’s dealing with the insurance companies that would provide separate plans for access to contraceptives.  In their initial reaction, the new government brief noted, the non-profits had made a specific list of the ways in which separate access to contraceptives would have to be arranged, and that kind of demand is beyond what they are entitled to make under RFRA.

When the first round of these briefs in reaction to the Court’s alternative suggestion, and the final round of briefs sent in on Wednesday, are laid side by side, there is considerably more difference than commonality between them.  It thus is not clear that the initiative the Court took in introducing its own idea drew helpful reactions.


Recommended Citation: Lyle Denniston, Still a gap on Court’s birth-control idea, SCOTUSblog (Apr. 20, 2016, 5:46 PM),