The U.S. Supreme Court called for additional briefing in a divisive clash over contraceptives and Obamacare, issuing an unusual order that suggests at least one justice may be eyeing a possible compromise.
The order comes less than a week after an argument session hinted at a potential split in the case, which involves the Obama administration’s effort to ensure that employees have insurance coverage for birth control even if they work for a religious group that objects.
In a five-paragraph order Tuesday, the court asked the two sides to consider an alternative approach that might let the administration accomplish its goals without violating the rights of the religious groups.
The court directed the lawyers to file their briefs by April, signaling the justices want to decide the issue during the term that ends in June. The court has been operating with only eight members after the death of Justice Antonin Scalia, and the contraceptive case could produce a 4-4 deadlock.
The dispute stems from Obamacare’s requirement that contraceptive coverage be included in employee and student health plans. The court’s four liberal justices suggested last week that the administration had adequately accommodated faith-based employers and universities by letting them opt out and have their insurer provide the required birth-control coverage.
Justice Anthony Kennedy, the potential fifth vote for the administration, appeared skeptical, and the new order may reflect his effort to navigate a middle path.
The order asks the two sides to address “whether and how contraceptive coverage may be obtained” through the groups’ insurance plans “but in a way that does not involve any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”
Religious groups, including the Little Sisters of the Poor, say the administration is trying to “hijack” their health plans to provide something they consider to be the equivalent of abortion.
One of the groups’ lawyers, Mark Rienzi of the Becket Fund for Religious Liberty, called the high court order “an excellent development.”
“Clearly the Supreme Court understood the Sisters’ concern that the government’s current scheme forces them to violate their religion,” Rienzi said in a statement.
Another lawyer representing the groups, David Cortman of the Alliance Defending Freedom, said in a statement he would need to confer with his clients before responding.
He suggested the government should go further. “The government can offer these services to women who want them without forcing Christian schools, nuns and priests to abandon their belief that life is sacred,” he said.
The administration currently gives objecting nonprofits two options: They can shift responsibility onto their insurer by providing it with a “self-certification” form, or they can notify the U.S. Department of Health and Human Services of their objection and provide contact information for their insurer. Either way, the federal government reimburses the insurer for the cost of the coverage.
The religious groups contend that they shouldn’t have to play any role, even by filing a form indicating that they are opting out of providing coverage.
The five-paragraph high court order suggests a third possibility. It tells the lawyers to “consider a situation” in which objecting employers, in arranging for health insurance, merely tell their insurer that they object to contraceptive coverage and don’t want to include it. They wouldn’t have to submit any separate notice to the insurer or the government.
Under the court’s proposal, the insurer then would notify the employees that it would provide birth control coverage separately.
Allison Steinberg, a spokeswoman for the American Civil Liberties Union, said the order “shows that the court is concerned about the consequences to women if they are unable to get seamless contraception from their insurance company.” The group backs the Obama administration in the case.
The religious groups have been at a disadvantage since the death of Justice Antonin Scalia last month. Scalia was in the majority in a 5-4 ruling in a 2014 case involving the craft-store chain Hobby Lobby, when the court said closely held corporations can refuse to provide birth control coverage to employees. The current case involves religious nonprofits, rather than for-profit companies.
Although Kennedy backed Hobby Lobby, he suggested at the time that the administration could fix the problem by adopting the type of approach it is using with religious groups. He wrote that those rules provide “an existing, recognized, workable and already-implemented framework to provide coverage.”
Kennedy adopted a different tone during arguments last week, at one point saying the administration’s approach would “hijack the plans.” At another, he suggested women could get birth control coverage elsewhere.
“If it’s so easy to provide, if it’s so free, why can’t they just get it through another plan?” Kennedy asked.
The lead case is Zubik v. Burwell, 14-1418.
Supreme Court’s Special Order re: Zubik v. Burwell, March 29, 2016: