In Stanley Kubrick’s 1968 film, 2001: A Space Odyssey, the only survivor of a disastrous Jupiter space mission disassembles the spacecraft’s rogue computer, HAL, which has been killing the crew. As the astronaut disconnects HAL’s memory units, the once omniscient computer sings “Daisy, Daisy,” and then falls silent forever.
The United States Supreme Court, whose Oz-like roar until recently terrified all who heard, is now short a justice and is slowly coming undone. Its voice from the bench, like HAL’s, is slowing and blurring.
The Court’s per curiam “decision” in Zubik v. Burwell, announced Monday, is the latest evidence of its slide toward paralysis. Zubik, one of the most closely watched cases of the 2015-16 term, was a religious-freedom challenge by a group of religious non-profits to the Affordable Care Act’s contraceptive mandate. Under regulations issued by the Department of Health and Human Services, the non-profits were required to notify the government that they object to providing their employees with insurance coverage for contraceptives. The government would then order the non-profits’ insurers to provide the coverage as part of the employee policy, at no cost to the employer.
It’s a very substantial accommodation—so serious, in fact, the Court itself, in the 2014 case of Burwell v. Hobby Lobby Stores, ordered the government to offer the very same accommodation to for-profit employers with religious objections to contraceptive coverage. That, the Court suggested, would avoid any violation of the Religious Freedom Restoration Act, which requires that the government not “substantially burden” religious practice unless the “burden” is “narrowly tailored” to advance a “compelling governmental interest.” But in Zubik, the non-profits insisted that even that arrangement violates RFRA, because employees would still get contraceptive coverage through their existing insurance. This meant the government was “hijacking” the employers’ policies, they said, placing a “substantial burden” on their religious beliefs. (Paul Clement, a lawyer for the challengers, told the Court solemnly that the “accommodation” was every bit as oppressive as requiring Catholic nuns to operate a birth-control clinic in their convent.) The government, and many advocacy groups, responded that an accommodation was one thing; the demand for an exemption even from asking for an accommodation was a radical escalation of the idea of religious freedom.
The dispute is an important one, not only for the thousands of employees who work for religious hospitals, service agencies, and charities, but for the very notion of “free exercise” of religion in the post-Hobby Lobby world. The challengers seemed on track to punch a large hole in the government’s power to enact all kinds of federal social, economic, and welfare programs.
But not long before argument, Justice Antonin Scalia died. The Court now seemed likely to split 4-4, which would have left the program intact in the seven circuits where the cases arose. (All the cases before the Court had been victories for the government in courts below; after cert. was granted, the Eighth Circuit reached a contrary conclusion.) In seeming desperation after oral argument, the justices issued an extraordinary “supplementary briefing” order. In the order, the Court proposed its own settlement of the dispute and asked if that would make everybody happy. The new plan would be for employers to tell their insurers they don’twant their plan to cover contraceptive coverage. The insurers would then turn around and offer the employees … contraceptive coverage though the plan, at no cost to the insurers. Thus the employers would not have to sully themselves by asking for an exemption, and the employees would still get their coverage.
The parties responded last month, and on Monday the Court basically held in favor of itself, proclaiming that “[b]oth the petitioners and the government now confirm that such an option is feasible.” But rather than order the “compromise” put into place, the Court sent all the cases back to their respective courts of appeals, with instructions to give the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”
This sounds like a draw, but it isn’t exactly. Concealed in the Court’s oracular language is a tentative but important win for the government.
In their supplemental brief, the challengers said they were perfectly happy with the Court’s “compromise” plan—as long as contraceptive coverage was “provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source.” This segregation of contraception, however, was precisely what the government was seeking to avoid. It had argued that contraceptive coverage must be “seamless,” offered as part of the regular coverage. Government studies show that this is needed to make sure that women are actually able to use the benefit, without paying a separate premium or needing to find a different provider—both of which reduce their usage of contraception significantly.
A couple of the male justices suggested at argument that maybe women’s reproductive health care ought to just be cut out of “normal” health policies and women should be required to buy a special birth-control policy and pay out of their own pockets.
However, the Court’s opinion Monday contains the following language: “The Government has confirmed that the challenged procedures . . . could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”
As Justice Sonia Sotomayor points out in a special concurrence to the Court’s “per curiam” order, the language suggests that courts below should notapprove any settlement that does not provide “seamless” coverage. In addition, she notes, the “contraceptives only” policies that some Justices wondered about “do not currently exist,” and may very well not be permitted under federal law.
The Court did not enter an order; instead it sent the cases back to the circuits, basically to allow the parties to negotiate. And the Court indicated that there’s no hurry to wind up the talks. Right now, it pointed out, the employees arereceiving the coverage under an interim order issued in 2014. And the government will not be allowed to issue fines and penalties against the employers until the case is resolved.
Thus the challengers face a kind of prisoners’ dilemma: settle now, with a victory for the government on the table, or stall until an unknown new president arrives to appoint an unknown new justice.
No matter who appoints the next justice, however, the issue will be back in some form. The Court’s order carefully does not resolve the true statutory issues, which are: (1) Is merely filling out a form stating an objection truly a “substantial” burden on religious rights? (No case supports that idea.) (2) Is providing “seamless” contraceptive care a “compelling governmental interest”? (The Hobby Lobby majority seemed skeptical that contraception was all that important.) And (3) is the “mandate” the “least restrictive means” of achieving that “interest”?
At the beginning of this term, the conservative agenda seemed clear: dismantle affirmative action and public-employee unions, and fashion RFRA into a tool that would allow anyone—corporation, church, or individual—to opt out of the regulatory state at any time for any reason. In these high-profile cases, definitive resolution seemed, for better or worse, to be in the offing.
Public-employee unions have survived; the contraception mandate also seems to have also staggered through this term. It’s unclear what will happen on affirmative action, but the Court seems no more likely to be definitive there than it has been in the latter two.
Now these battles will continue as the parties debate the Court’s oblique words and unsettled reasoning.
“A Bicycle Built for Two” may not be far off.
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