Less than a week after the Supreme Court heard oral arguments about the Affordable Care Act’s contraceptive requirement, the court released an order requesting that additional briefs be submitted showing if and how contraceptive insurance coverage could be obtained by employees through their insurance companies without directly involving the religious employers objecting to this coverage.
The order was released the afternoon of March 29, just six days after the justices heard oral arguments in Zubik v. Burwell, a consolidated case involving the Little Sisters of the Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, and the Archdiocese of Washington. The groups are challenging the Affordable Care Act’s mandate that most religious and other employers must cover contraceptives, sterilization and abortifacients through employer-provided health insurance.
Religious groups who did not fit the narrow exemption to the contraceptive mandate given to churches and religious groups argue that they cannot participate in providing contraceptives without violating their beliefs and that the Obama administration’s “work-around” allowing them to acknowledge their opposition and thereby trigger an arrangement for a third party to provide the coverage is still objectionable.
The court’s March 29 order specifically outlined the procedures objecting religious employers must follow if they do not want to provide insurance coverage of contraceptives and went on to suggest that the groups could contract a third party to provide health insurance for their employees, but they would need to inform the insurance company that they did not want the plan to include contraceptive coverage that they find objectionable.
The insurance companies, the order said, could “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.”
With the plan, the objecting religious employers would not have to submit a form to the government or their insurance companies about the coverage.
The Supreme Court’s order also pointed out that the parties involved in this case may have “other proposals along similar lines,” but they should avoid repeating what they mentioned in previous briefings.
The additional information should be submitted by April 12 and should be limited to 25 pages for the petitioners and April 20, and no more than 20 pages, for respondents, the order said.
The court’s request for more information came out the same day the court voted 4-4 in a case challenging the fees that labor unions collect from nonmembers.
Many have speculated that with Justice Antonin Scalia’s death in February, the current court of eight justices will result in a number of split decisions.
After the oral arguments in Zubik v. Burwell, there was plenty of speculation that the court seemed poised for a split decision in this case as well, which would uphold the lower courts’ decision and mean the contraceptive mandate for religious groups will be interpreted differently in different areas of the country.