SCOTUS asks for additional briefing in ACA contraception cases


The Supreme Court on Tuesday afternoon asked lawyers on both sides of seven birth control cases to make new proposals to find a new way to spare religious non-profit institutions from any role in providing birth-control techniques for their employees, while still assuring that those services are available.

Lyle Denniston at SCOTUSblog writes, Court seeks new way to decide birth-control cases:

ProtestorsThe Supreme Court on Tuesday afternoon, looking for a new way to spare religious non-profit institutions from any role in providing birth-control techniques for their employees even while assuring that those services are available, asked lawyers on both sides of seven cases to make new proposals on how both might be done.

In the two-page order, which the Justices apparently had been working on since they held a hearing last Wednesday, lawyers were told to file one new brief on each side of the controversy, and then single replies, and to submit all filings by April 20.  There was no indication that the Court would hold a new hearing on this deep controversy under the Affordable Care Act.

From the specific wording of the new requirement, the Court appeared to have accepted — at least tentatively and maybe only as the basis for further exploration — the view of the non-profit hospitals, schools, and charities that any step they take would involve them in a violation of their religious objections to some or all contraceptive methods, but also to have accepted — again, perhaps only tentatively and for further analysis — the government’s view that it had to work through those non-profits’ existing health insurers to assure cost-free contraceptive coverage to their female employees of child-bearing age.

If the lawyers on both sides cannot come up with ways to reconcile those two perceptions, the Court may have to move forward to decide the seven cases just as they came to the Court and as they stood for last week’s oral argument.  One of the most significant developments at that hearing was that a number of Justices (though maybe not a majority) had seemed to accept the non-profits’ claim that the government would be “hijacking” those institutions’ own health plans for employees or students, which would also involve them in providing access to birth-control methods and devices to which they object.

The non-profits’ lawyers argued that the government had a duty, under the federal Religious Freedom Restoration Act, to find ways to provide access to contraceptives entirely independently of those non-profits and their existing health plans.  That was the argument that prompted a number of Justices to comment about the “hijacking” that might occur.  The new order seemed to center on that.

In previous, temporary orders the Court had issued as this controversy had developed, before the Court took on a full-scale review, the Justices had required the non-profits to provide some specific notice that they do object to the birth-control mandate based on their beliefs, and had required such notice either to the providers of their insurance plans or to government agencies.

The new order thus seemed aimed at cutting the non-profits free from any notice requirement — to anyone.  But it also seemed to be based on the premise that a way might be worked out for the providers of existing health coverage for the non-profits to set up something new, so that access would not be forthcoming through the non-profits’ existing health plan.

Although the government had told the Court that it could not provide contraceptive coverage for the employees of these institutions without going back to Congress for legislation amending the ACA birth-control mandate, the new order appeared to accept that as a legal barrier, but to at least imply that new arrangements could be made between the government and health insurers.

The order thus represented a significant break from the Court’s customary approach of taking a controversy as it finds it, and deciding its legality based only on those terms.  What the two sides may say in response to the new filing requirement remains to be seen, but it does suggest that they might have to craft new sets of contractual agreements or new government regulations under the ACA — approaches that, perhaps, might be implemented without new action by Congress.

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The order made no mention of a further public hearing.  The Court will be into its final hearing schedule when the new briefing is to be completed.  It has the option of calling for a new hearing, if it wished.

It appears to me that the four remaining conservative activist Justices are at least preliminarily agreeing to the absolutist approach of the religious institutions, which could signal a slippery slope to using one’s religious beliefs as a “get out of jail free” card to comply with laws with which one disagrees. It is not clear to me how the Court could possibly conform this view with its previous holdings in conscientious objectors to military service and the payment of taxes cases.

This could be a red flag for the so-called “religious liberty” cases aka “a right to discriminate” against LGBT individuals in legislation being considered by GOP legislatures around the country, LGBT-rights groups file federal lawsuit over new North Carolina law.