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”?