WASHINGTON (April 1, 2016) — The U.S. Supreme Court's unusual move seeking more information from parties involved in challenging the Affordable Care Act's (ACA) contraceptive mandate could signal attempts to overcome a stalemate in the eight-member Supreme Court, sources say.
The Supreme Court's order also offers hope for religious nonprofits that believe the ACA's rule requiring them to provide prescription contraceptive coverage to employees violates their rights under the 1993 Religious Freedom and Restoration Act.
The justices on March 29 asked religious nonprofit organizations that object to the mandate and government agencies defending the law to provide ideas to allow employees to obtain contraceptives that do “not require any involvement of petitioners.”
The petitioners — mostly religiously affiliated nonprofit universities and colleges, nursing homes, charities and Roman Catholic clergy — sued to challenge U.S. Department of Health and Human Services rules that require them to notify their insurers or third-party administrators (TPAs) of their objections to providing coverage, with the insurers or TPAs then providing the contraceptives.
The religious nonprofits, which argued their case orally earlier this month before the eight-member high court, said the accommodation still would make them complicit in providing contraceptives to their employees, which they say violates their faith.
“The parties are directed to address whether contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners,” the high court said in its order.
“I think reasonably informed speculation is that the court may well be evenly divided, and it's seeking to find a way to come to a majority to avoid the situation that it had only (earlier this week) of an equally divided court, thus affirming the judgment” in a union fees case from California, Ralph S. Tyler, Baltimore-based partner at law firm Venable L.L.P. and former chief counsel to the U.S. Food and Drug Administration, said March 30.
In the public union fees ruling, the Supreme Court's 4-4 decision effectively upheld a lower court that nonunion workers must pay fees to the unions that represent public employees.
The February death of conservative Associate Justice Antonin Scalia left an eight-member panel.
In the contraceptive case, The Rev. David A. Zubik et al. v. Sylvia Burwell et al., eight lower courts have upheld the government's mandate. However, one appeals court, the 8th U.S. Circuit Court of Appeals, has overturned the government rules.
“It's a disparity in the different circuits, so what the Supreme Court was looking to do with this original case is bring unity” to several lower courts' decisions, said Amy Gordon, Chicago-based co-chair of law firm McDermott Will & Emery L.L.P.'s health and welfare benefits affinity group. Therefore, “they are going back and offering the parties (a chance) to come together and come to a more amicable solution.”
Ms. Gordon said it appears there was a stalemate on the high court, otherwise “they'd come out with their decision and it would have been business as usual.”
“It certainly is unusual to request supplemental briefing after a case has been argued, and it's particularly unusual to put the kind of questions that are put here, which are not strictly legal questions but practical and logistical questions,” Mr. Tyler said.
The Supreme Court is asking, “Logistically is there a way to remove the religious organizations entirely and still provide the coverage? How would this be done?” he said of an issue with which Congress and regulators have struggled for years. “If this were easily solvable, it would have been solved.”
For the religious nonprofits, the order is a step in the right direction.
“We see this as a positive development in that the court appears to be looking for a least restrictive alternative that would not burden our religious beliefs, which will ultimately mean that the government did not satisfy its burden under” the religious freedom law, the Rev. Frank Pavone, national director of petitioner Priests for Life, said Tuesday in an email.
“This is an excellent development. Clearly the Supreme Court understood the (Little Sisters of the Poor's) concern that the government's current scheme forces them to violate their religion,” Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty, which represents petitioner Little Sisters of the Poor, said Tuesday in a statement. “We look forward to offering alternatives that protect the Little Sisters' religious liberty while allowing the government to meet its stated goals.”
The Justice Department declined to comment.
This report appeared on the website of Business Insurance magazine, a Chicago-based sister publication of Tire Business.