The unusual request from the court
to consider an alternative plan that covers contraceptive coverage to employees at no cost came after oral arguments last month
that appeared to show justices evenly divided, 4-4. The delicately worded responses from both sides showed some willingness to the court's idea, but with reservations in terms of how the plan is administered and what happens to future challenges.
At issue in the case is a challenge filed by religious non-profits — including an order of nuns, the Little Sisters of the Poor -- who are opposed to the law's requirement that group health plans provide a full range of contraceptive coverage to women at no cost. The groups say the requirement forces them to either violate their religious beliefs by providing "abortifacients and contraceptives" or pay ruinous fines.
Although the Obama administration has offered them an accommodation meant to respect their religious objections, the groups said it is not good enough because it still makes them complicit in providing the coverage.
As things currently stand, the non-profit groups have to either submit a form to the federal government or to their insurer stating their objections on religious grounds. The court asked both sides to consider an alternative and address the question whether "contraceptive coverage could be provided to petitioners employees, through petitioner's insurance companies, without any such notice from petitioners."
The administration expressed some reservations about the court's suggestions, but Solicitor General Donald Verrilli said it "describes an arrangement very similar" to the existing accommodation. "The only difference," he wrote, is "the way the accommodation is invoked."
Verrilli makes clear that if the court determines that the accommodation must be modified it should also make clear that there can't be more legal challenges. This is the fourth major Obamcare-related case to hit the Supreme Court since President Barack Obama signed the law in 2010.
"The government is willing to accept the court's modifications to the accommodation so long as the court makes clear that this brings the litigation to an end," said Gregory Lipper, senior litigation counsel at the Americans United for Separation of Church and State, who filed a brief in support of the government in the case. "The government does not want yet another round of legal challenges to the modified accommodation which would put women's access to contraception in limbo for several more years," he said.
Verrilli also said the court's order only addresses groups that use indpendent insurerers and would not apply to groups with self-insured plans.
In their briefs, lawyers for the the non-profit groups say that the current accommodation "requires petitioners to take affirmative steps that enable their health plans to be 'hijacked' for the delivery of contraceptive coverage."
They say they could accept the court's scenario for insured plans if the non-profits "would have no obligation to comply with that mandate at all, and would not need to take any affirmative step to avoid the threat of penalties ... or any other form of liability as a consequence of their decision not to include some or all contraceptive coverage from their plans."
Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty, representing some of the groups, agrees with the government that the court's proposal isn't directed at self-insured plans.
In an interview, Rienzi said the groups would accept the court's order, "as long as it is really, truly separate."
"We've said all along that we are not objecting to people getting coverage," Rienzi said. " We are saying we just can't be part of it. There is no shortage of ways the government could let people know about the availability of contraceptive-only plans including on the exchanges, or at doctors offices or government notifications."
But Lipper believes that with respect to the non-profits who use a self-insured plan the groups are proposing something he thinks is akin to requiring women to obtain a separate contraceptive-only plan.
"What they are suggesting would sever women's reproductive care from the rest of their medical care, and would subject women to the very burdens that the Affordable Care Act sought to do away with," he said.
In the coming days, the parties will respond to each others' briefs and could raise more questions for the court to consider.
The justices would be particularly interested in avoiding a 4-4 split in this case, because such a ruling could cause confusion across the country. A tie would mean the justices would simply be affirming the lower court decisions at hand, but it would also mean that other lower court decisions that have gone the other way would still be on the books. It would mean that not everyone in the country would be playing by the same rules.
The court has had eight justices since the death in February of Justice Antonin Scalia. The Obama administration has used the idea of a split court in cases like this to push for the confirmation of Judge Merrick Garland to the bench, saying a divided court creates uncertainty across the country.