Is there the potential for a compromise in Zubik v. Burwell?

Sarah Hannigan

SFS 2018

A recent development in Zubik v. Burwell, a case on accommodations for religious non-profits under the Affordable Care Act’s contraception mandate, has further complicated the case and is likely an effort by the Court to avoid a 4-4 tie in the ruling. Both sides of the case have been required to submit additional briefs, an order that has been described as an unusual attempt to reach a compromise before the ruling in late June.[1]

The case centers on religious exemptions to the Affordable Care Act’s birth control mandate, which requires all insurers to provide women with contraceptives on their health plans for no extra cost. Purely religious organizations such as churches or temples are exempt from the requirement.[2] After other religious groups protested that they were being required to violate their beliefs by providing female employees with contraceptives, the Obama administration also created an exemption for religious non-profits, such as hospitals, schools, charities, and other public service groups.[3] Currently, religious non-profits must submit a one-page form in writing to request an exemption from the mandate. The insurance companies then provide contraceptive coverage to the female employees directly, without involvement from the non-profit.[4]

However, religious groups argue that the fact that they must submit a form in order to request an exemption still violates their religious freedom under the 1993 Religious Freedom Restoration Act. The plaintiffs in Zubik v. Burwell, a group of religious non-profits, sued under the Religious Freedom Restoration Act, arguing that requesting an exemption constitutes a “substantial burden” on their right to religious freedom.[5] The non-profits contend that the act of submitting an exemption is in itself an affront to their religious beliefs, while the government claims that filing for an exemption does not constitute a “substantial burden.”[6]

After the death of Justice Antonin Scalia, it seemed likely that the case would end in a 4-4 tie. A tie would create a difficult legal problem, because several federal appeals courts’ upholding of the accommodation would remain, while the Eighth Circuit’s ruling in favor of the non-profits would also hold. As a result, the law would be different in different parts of the country – religious non-profits in Eighth Circuit states such as Arkansas, Iowa, Minnesota, and Nebraska would not have to request an exemption, while non-profits elsewhere would continue to have to do so.[7]

Due to the complications that would arise from a 4-4 tie, the justices seem to be searching for a compromise between the federal government and the religious groups. The recent and unusual Court order states that both sides must submit briefs “that 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 order essentially asks whether it would be possible for insurance providers to provide female employees of religious non-profits with contraceptives without the non-profit ever having to submit an exemption request or be involved in any way. Such a possibility would satisfy both the non-profits’ desire not to be involved whatsoever in providing contraceptives, as well as the government’s requirement that all insured women have access to contraceptives.[8]

The Court even went so far as to provide a suggested plan for how insurance companies could separately provide contraceptives without any involvement from the religious non-profit. According to the New York Times, the order “was exceptionally elaborate and seemed to envision new regulations from the Department of Health and Human Services.”[9]

As a result of the Court’s unusual attempt to reach a compromise of sorts, it is possible that the Court could come to a consensus on the issue. A majority vote would prevent the legal complications that would arise from a 4-4 tie and the upholding of inconsistent laws in different parts of the country.

 

Notes

[1] Adam Liptak, Supreme Court Hints at Way to Avert Tie on Birth Control Mandate, The New York Times, http://www.nytimes.com/2016/03/30/us/politics/supreme-court-hints-at-way-to-avert-tie-on-birth-control-mandate.html (last visited Apr. 19, 2016); Mark Sherman, Supreme Court seems to seek compromise in birth control case, Associated Press, http://www.pbs.org/newshour/rundown/supreme-court-seems-to-seek-compromise-in-birth-control-case/ (last visited Apr. 19, 2016).

[2] Mark Sherman, Supreme Court seems to seek compromise in birth control case.

[3] Adam Liptak, Supreme Court Hints at Way to Avert Tie on Birth Control Mandate.

[4] Matt Ford, A Puzzling Order in a U.S. Supreme Court Case on Obamacare, The Atlantic, http://www.theatlantic.com/politics/archive/2016/03/a-puzzling-order-in-a-us-supreme-court-case-on-obamacare/475986/ (last visited Apr. 19, 2016).

[5] A pious hijacking at the Supreme Court, The Economist, http://www.economist.com/blogs/democracyinamerica/2016/03/birth-control-and-obamacare (last visited Apr. 19, 2016); Jesse Wegman, The Growing Mess of the Supreme Court’s Contraception Case, The New York Times, http://takingnote.blogs.nytimes.com/2016/03/31/the-growing-mess-of-the-supreme-courts-contraception-case/ (Apr. 19, 2016).

[6] Matt Ford, A Puzzling Order in a U.S. Supreme Court Case on Obamacare.

[7] Id.; Adam Liptak, Supreme Court Hints at Way to Avert Tie on Birth Control Mandate.

[8] Id.

[9] Adam Liptak, Supreme Court Hints at Way to Avert Tie on Birth Control Mandate.

 

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