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!”