A Puzzling Order in a U.S. Supreme Court Case on Obamacare

The justices pose a hypothetical in Zubik v. Burwell, one of the most-watched cases of the term.

Something strange is afoot at the U.S. Supreme Court. The justices issued a highly unusual order Tuesday for the parties in Zubik v. Burwell, one of this term’s most-watched cases.

Here’s the abridged version of the dispute: The Affordable Care Act’s regulations require virtually all employers to provide health insurance to their employees. They also require health-insurance companies to include contraceptive coverage for women in their plans at no additional cost. Religious nonprofits that object to contraception may file a one-page form with the federal government, at which point the insurance company will directly provide the coverage to their employees without further involvement from the nonprofit.

That accommodation is where the controversy begins. A group of religious nonprofits, ranging from private Christian universities to the Little Sisters of the Poor, argued that filing the form still requires them to facilitate something their religious beliefs abhor. The government counters that the accommodation simply allows the nonprofits to opt out of the requirement, which doesn’t qualify as a “substantial burden” under the Religious Freedom Restoration Act.

After the death of Justice Antonin Scalia in February, the case seemed destined for a 4-4 ruling that would leave all lower-court rulings on the issue intact. In practical terms, the contraceptive-coverage mandate would survive everywhere except the Eighth Circuit, which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, and the Dakotas.

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.”

A strong possibility, articulated well here by Greg Lipper, the senior litigation counsel at Americans United for Separation of Church and State, is that Kennedy isn’t satisfied with the nonprofits’ proposed solutions if the accommodation is struck down, and is hunting for less disruptive alternatives. That could be bad news for the nonprofits if his hunt comes up empty, Lipper suggests.

“Under the Court’s proposal, objectors wouldn’t have to do anything other than tell their insurance companies what coverage they want and what coverage they don’t want,” he notes. “If they respond that even the Court’s proposal substantially burdens their religious exercise, then it becomes even clearer that they object to the independent conduct of third parties.”

Whatever the precise motivations, the order’s detail and emphasis feel like a last-ditch attempt to avoid a deadlocked ruling. One can’t blame the justices for trying. Without their intervention, a major federal law will mean two different things in two different parts of the country. Resolving these differences is the Supreme Court’s most basic function—one it could fail to perform in this case and others until its vacant ninth seat is filled.