SCOTUS Orders Parties to Brief on Possible Compromise in ACA Case

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On March 23, 2016, the U.S. Supreme Court heard oral arguments in Zubik, et al. v. Burwell, the case in which religious not-for-profits are challenging the process in which they can claim a religious exemption to the contraception requirement in the Affordable Care Act (ACA). On Tuesday, March 29, 2016, the court issued an unusual order hinting the court might be looking for some kind of compromise to deal with this highly controversial case.

The court’s order requests supplemental briefing on whether there is a way for an insurer to offer contraception coverage at no charge without necessarily involving the religious not-for-profit. Specifically, the court ordered the parties to “address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The court noted: “Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage.” The court further ordered the parties to “address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”

The court then gave one possible suggestion as to how this might work:

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

The court also invited the parties to “address other proposals along similar lines, avoiding repetition of discussion in prior briefing.”

A request for supplemental briefing after an oral argument is unusual. This specific request is even more unusual and possibly reflective of the unique environment currently at the court and with this particular case. There are only eight members on the court and this case involves the ACA and First Amendment. The court has already issued at least two opinions, including one in another highly controversial case involving labor unions in California, affirming lower court decisions on the basis that the court is evenly divided. A decision of some kind is expected by June 2016.