U.S. Supreme Court

Supreme Court notes potential compromise and remands contraceptive opt-out case

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The U.S. Supreme Court on Monday noted a potential compromise and remanded a challenge to the opt-out procedure for religiously affiliated organizations that don’t want to provide contraceptive insurance coverage for their employees.

In a per curiam opinion (PDF), the court said supplemental briefing requested by the court showed a possible approach that could resolve the dispute.

“Although there may still be areas of disagreement between the parties on issues of implementation,” the Supreme Court said, “the importance of those areas of potential concern is uncertain, as is the necessity of this court’s involvement at this point to resolve them.”

In an analysis of the pending case for the ABA Journal, University of California at Irvine law dean Erwin Chemerinsky said he could not think of another instance where the Supreme Court has suggested an alternative and asked for briefing on it. He believed the request reflected a 4-4 split on the issue.

The Affordable Care Act generally requires companies that employ more than 50 people to provide contraceptive coverage with employee health insurance. There is an exception for religious institutions opposed to contraception. Currently, nonprofits affiliated with such institutions must submit a form if they object to contraceptive coverage. That triggers coverage by the insurance provider and the federal government.

The nonprofits had argued that filing the form makes them complicit in providing coverage and violates their rights under the Religious Freedom Restoration Act.

The Supreme Court had asked in its briefing request to consider a situation in which the nonprofits would tell their insurers they don’t want to provide contraceptive coverage when they initially obtain insurance for their employees. No separate notice would be required. The insurer would then inform the employees that it was providing the coverage at no cost.

In their supplemental briefs, the nonprofits indicated their religious objections would be satisfied if they contracted for health plans without contraceptive coverage, even if their employees received free contraceptive coverage from the same insurance company.

The federal government said in its brief that the opt-out system could be modified as the court suggested.

The Supreme Court said it was taking no position on the merits of the case. “In particular,” the Supreme Court said, “the court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”

Justice Sonia Sotomayor concurred in an opinion joined by Justice Ruth Bader Ginsburg. Sotomayor stressed that the court’s opinion was not a decision on the merits. She also said the government had noted several legal and practical obstacles to providing contraceptive coverage through separate contraceptive policies with their own enrollment process.

“Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act,” Sotomayor said.

The consolidated cases are known as Zubik v. Burwell.

Related articles:

ABAJournal.com: “Supreme Court’s contraceptive compromise might work, parties say”

ABAJournal.com: “Chemerinsky: How will SCOTUS rule in contraceptive coverage case?”

ABAJournal.com: “Supreme Court issues ‘unusually extensive’ order for more briefing in contraceptive-coverage case”

ABAJournal.com: “Justices appear split in arguments on contraceptive-coverage opt-out”

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