But Tuesday’s order muddles those predictions. It requires all parties in the case to file supplemental 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.” (“Petitioners” refers to the nonprofits.)
The Court then offers a bit of explanation and more direction.
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 parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.
Then, in the closing paragraph, the Court outlines its own hypothetical solution.
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.
Finally, and perhaps most interestingly, the Court invites the parties to “address other proposals along similar lines, avoiding repetition of discussion in prior briefings.” The Court appears to be inviting both sides to a brainstorming session of sorts.
So, what does all this mean?
For starters, the order only makes sense if there aren’t currently five votes for the legal status quo. Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed ready to uphold the accommodation after oral arguments. If Justice Kennedy had provided a fifth vote to them, an order pondering alternative means to provide contraceptive coverage would be pointless.
That would be quite a reversal for Kennedy, who unambiguously wrote in favor the accommodation only two years ago in his Burwell v. Hobby Lobby concurrence. “The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it,” he wrote then. “That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.”