Not since a disembodied hand wrote MENE MENE TEKEL UPHARSIN on the wall of Belshazzar’s palace has an oracle delivered a message quite so mystifying as that announced by the U.S. Supreme Court on Tuesday. In an extraordinary order—not paralleled in at least half a century—the Court has asked for briefs on a new question in the hotly contested case of Zubik v. Burwell, the Affordable Care Act contraceptive-coverage case that was argued only last week.
Here is the gist of the question the parties are to answer by April 12: What if this Court tears up the entire regulatory apparatus of the ACA and just creates a brand new one?
As Ken Jost pointed out to a group last night, the nearest parallel for what happened Tuesday is the order for reargument in Brown v. Board of Education—which only underscores how unusual this moment in the Court’s history is.
The plaintiffs in Zubik are religious nonprofits that are required by the ACA to provide comprehensive health insurance for their employees. The act requires these policies to cover “preventive care.” So the Department of Health and Human Services has issued regulations requiring most policies to offer female employees the full range of medically safe contraceptive methods.
Some religious employers, however, object to providing contraceptive coverage. HHS provided a complete exemption for “houses of worship”—religious nonprofits that focus exclusively on religious exercise. Their policies don’t have to cover contraception. Religious nonprofits—like hospitals, universities, and social-service agencies—on the other hand, employ many more people than “houses of worship” and are not solely focused on religious practice. They are not exempt from the ACA’s mandate to cover preventative care. Instead, they are offered an “accommodation”: A religious nonprofit employer opposed to offering contraceptive care can file a form with the government objecting to the coverage; the government then instructs the employer’s insurer to provide the coverage to the employees without any payment by or charge to the employer.
Here’s the quarrel: The nonprofits don’t want “accommodation”; they want a complete exemption, like the “houses of worship.” They don’t want to have to fill out a form—“houses of worship” don’t have to; they’re just exempt from the start. What’s more, the religious nonprofits don’t want the government to “make use of” what they refer to as “their” “plan infrastructure” to provide the coverage, either. At the same time, the government wants this important medical coverage not only provided but provided “seamlessly.” That term means that women will get their coverage without needing a separate insurance card, more bureaucracy, additional payment, or a different physician. Studies show that “seamless” coverage provides better health outcomes—and fewer abortions—for women, whether they need contraception to avoid pregnancy, space their pregnancies, treat endometriosis or alopecia, or regulate menstrual cycles, among other uses.
It’s a fairly basic disagreement. But now the Court has suggested a possible solution: First, the nonprofit will go to its insurer and say, in no uncertain terms, “We want insurance for our employees with no coverage for contraception.” They would not have to send in any government form or pay for any insurance they did not ask for. The insurer, the order suggests, would then send a notice to the employees saying 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.”
Would this address the concerns on both sides?
The nonprofits say they don’t want the government to use the “infrastructure” of their insurance plan to provide the coverage. That, they say, would be “facilitating sin.” So the Court’s proposed solution is to allow them to certify nothing. They order the coverage they actually would order if they were exempt. They will, however, do so knowing that the coverage will be provided with some nearness to the plan’s “infrastructure.” Is that “facilitation”?
The government’s interest, meanwhile, is “seamless” coverage. At oral argument, the conservative justices repeatedly belittled that idea. Separate policies, higher premiums, different cards—all seemed to them like nothing more than minor inconveniences, not a public-health imperative. The Court’s suggested solution says contraceptive coverage will not be “provided through petitioners’ health plan.” So would that entail a different plan, a different doctor, a different network, a different co-pay—in other words, all the things the mandate is designed to avoid? Or will it be a system in which the insured gets one card that carries a notation: “Global Insurance Health Coverage PLUS* (*includes contraception not paid for by employer)”?
Finally, there’s a question of whether Court’s plan is even allowable under the text of the ACA. And, as Ian Millhiser pointed out yesterday, health-insurance plans are also governed fairly strictly by the labyrinthine Employee Retirement Income Security Act. Is this plan statutorily possible? If not, can the Court, with a straight face, just rewrite one or both statutes to justify its preferred policy outcome? Or would it invalidate the current regulations and suggest that Congress address the issue—which everyone knows would be the same as striking down the contraception rule permanently?
What’s going on?
At the most basic level, the Court, operating with only eight justices, is unable to decide this and other important questions that are before it. Court observers saw that yesterday, when a one-line 4-4 decision marked the end (at least for now) of Justice Samuel Alito’s ideological vendetta against public-employee unions. However you feel about that issue, that affirmance at least did no damage to the law. It simply leaves the existing rule in place—and, since there’s no circuit split, the law is uniform in all 50 states.
With Zubik, however, there’s a possibility of chaos flowing from a 4-4 decision. The Eighth Circuit has upheld the religious challenge in another case, while all the other circuits have rejected it. An evenly divided affirmance would have no effect on the Eighth Circuit case. If that conflict remains, what will a major company, with operations around the country, do to conform to the clashing rules? So the justices are fervently trying to avoid a 4-4, and that’s to their credit.
Beyond that, there’s the larger picture. More and more, American politics and government seem like the final montage of an Ingmar Bergman movie, in which medieval villagers eat bread contaminated with ergot and fall into a frenzied dance of death. The Court’s strange order appeared on the same day that the Republican presidential front-runner’s campaign manager was formally charged with assaulting a reporter, who the front-runner himself countercharged was actually a would-be assassin armed with a ballpoint pen. Meanwhile, members of the U.S. Senate, offered a chance simply to meet—just for, you know, a cup of coffee or something—one of the most esteemed and charming judges in the United States, have put their fingers in their ears and are screaming: “Go away! Go away! Cooties!”
Until Justice Antonin Scalia died, the effects of the national dance of death on the Court were apparently limited to an occasional Victor Spinetti-style tightening of the lips. But historians may record that Wednesday, March 29, 2016, marks the day the Court’s patience finally snapped.
This may be a cry for help. Please, please, please, the Court may be saying to the politicians. Act like children if you want, but send us the justice you owe us! Send help now! For the love of heaven, send help now!
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