Birth control case prompts SCOTUS to make unusual request for compromise. Both sides have responded.

Presumably feeling the effects of an evenly divided court, the US Supreme Court took a relatively unprecedented step at the end of March, asking parties in the case challenging portions of the birth control mandate under the Affordable Care Act to consider a potential compromise. After oral arguments in Zubik v. Burwell on March 23, the Court ordered both the US government and the various religious nonprofits challenging the birth control issue to submit supplemental briefs addressing whether they could reach a compromise arrangement in the case.

At issue in the case are regulations under the ACA that require nonprofits who object to providing birth control to their employees on religious grounds to either send a written notice to the Department of Health and Human Services or to use a specific form designated by the Department of Labor to inform their insurance company of their religious objections as well as their eligibility and wish to opt-out of coverage. The institutions who initially brought the suit object to these requirements as violations of the Religious Freedom Restoration Act (RFRA.)

After oral arguments, the Supreme Court ordered all parties to brief:

“whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The Court suggested a scenario where the nonprofits simply tell their insurance companies that they do not want to provide coverage based on religious grounds, but do not have to submit an official notice to the insurer, federal government or their employees. Insurance companies would then notify the employees that the employer was not providing coverage for birth control, but that the insurance company would provide contraceptive coverage without cost, as required by law.

In its supplemental brief, the federal government argued that the process as it exists now is minimally intrusive and should not be changed. It did indicate that the government may accept some change to the process, but urged the Court to make a specific finding that the government can continue to require the insurers to provide coverage even if the employers opt-out. The government urged the Court to address broader RFRA claims to avoid additional litigation on this or related issues in the future, which could effectively limit or deny contraceptive coverage as those play out in the courts.

The nonprofits on the other side of the case expressed support for the compromise in their supplemental brief, arguing that this scenario amounts to a less restrictive alternative for the government to protect women’s health without infringing on their rights under RFRA.

According to SCOTUS Blog, it is not clear what the impact of these briefs will be, or what the next steps are, as the Court has not indicated that it will hold another hearing in the case.

For more information about the case, see the case page on SCOTUS Blog.

Image via Wikimedia Commons user Bryancalabro.