This post also appears on Constitution Daily, the blog of the National Constitution Center in Philadelphia.
The Supreme Court is not normally involved in making deals, even deals that are aimed at helping the Justices decide a difficult legal dispute. But it may have just shown that it at least has the capacity to suggest a workable way to resolve a deep conflict between the warring sides in a major court battle. That may be what it is in the process of doing with the Affordable Care Act and that law’s contraceptives mandate.
At the court’s explicit invitation, the two sides in the seven cases the court is reviewing under the title Zubik v. Burwell – two sides that have been staring unpleasantly at each other across a deep gulf of disagreement – offered their reactions to a compromise of the Supreme Court’s own making.
Their initial responses were filed at the court on Tuesday evening, and the gulf between them was still much in evidence. The federal government made it clear it wants the court to move on to find a way to uphold the mandate as legal under the federal Religious Freedom Restoract Act, and the religious non-profits made it equally clear they want the existing plan found invalid under RFRA.
Even so, there was some “give” on the government’s side, even on points that it would prefer not to forfeit, and there was, in fact, an almost enthusiastic acceptance of the court’s idea on the other side, by religious non-profit hospitals, charities and colleges that object to contraceptives, at least in some forms.
If there is now a majority on the court that is willing to implement its own idea, by declaring that its proposal is just what is needed to salvage the mandate under RFRA, the Zubik cases could come out in a way that both protects the religious preferences of the non-profits and assures their women employees of cost-free access to birth-control devices and methods.
The government started out its new brief by arguing that its ACA birth-control rules already go far enough to accommodate the non-profit institutions’ religious scruples, but then relented a bit and conceded that the court might want to make an even further accommodation a condition for upholding the mandate.
As outlined in the court’s highly unusual March 29 order proposing the idea, the non-profits would have nothing whatsoever to do with their employees’ access to contraceptives, since that would come independently from the health insurers that the non-profits were using to run their existing employee health plans.
The Justice Department document, in effect, challenged the non-profits that are directly involved in the cases to give assurances that all such institutions, including scores not now involved in these specific cases, would go along with the court’s suggested approach. And it foresaw the possibility of long-running court battles if the court’s approach turned out to fail to satisfy all of the potential objectors
Moreover, it anticipated some costs in the court’s suggested alternative, making the mandate less efficient and less workable in getting contraceptives to women across the country.
The court’s plan would not make the birth-control coverage available “seamlessly,” as the government had wanted in order to make it easier for women to gain access.
But the very things about the court suggestion that troubled the Justice Department were the very things about it that turned out to be just what the religious non-profits had wanted. They said they would not object to having their existing health insurance companies actually provide contraceptive coverage – provided, of course, that doing so was separated by several degrees from the non-profits themselves.
The non-profits’ brief argued that the federal government could easily adapt to a regime in which the non-profit institutions with religious objections would simply be granted the equivalent of a total exemption from the ACA contraceptives mandate. And, they said, there were other available alternatives that would also keep them completely out of the process – such as the government setting itself up as the direct provider of birth-control devices and birth-control health coverage, or making contraceptives available through the new ACA health insurance exchanges, or marketplaces..
It was clear from the non-profits’ filing that they thought the court, in seeking reaction to its own suggestion, had sent a signal that it was ready to give them what they were seeking through the multitudes of lawsuits challenging the ACA mandate for contraceptives.
After Tuesday’s filings, there is one more step before the cases are returned to the court’s deliberations on them. That will be one round of replies, by both sides, that are due on April 20.
No one outside the court can know, at this point, what the court now will expect, or hope, to do with the two sides’ reactions. And one of the really deep puzzles about what happens from here on is whether, in fact, the proposal that the court laid out in its March 29 order actually had the support of all of the members of the court. There were no dissents from that order, but that does not necessarily mean that all eight of the Justices were going along with it contentedly.
It is not far from the possible, perhaps not far from the probable, that some dissent will begin to develop among the Justices as they move further along on the Zubik cases. There have been dissents before, when the court issued preliminary orders at earlier stages of the ACA contraceptives fight, and there could be again.
What both sides did say, though, and they did say it clearly, was that they very much want the court to decide, definitively, whether this ACA mandate does or does not satisfy the commands of RFRA. That will only become known as the court works on the cases in coming weeks and months. And, without outsiders knowing what kind of discussions went into the court’s fashioning of its proposed deal, it does seem still at least a possibility that the court could wind up in the end split 4-to-4, and thus decides nothing.
